Domestic Electronic Surveillance and the Constitution
19 Pages Posted: 7 Mar 2007 Last revised: 5 Nov 2012
In this article, we discuss the constitutionality of President Bush's domestic electronic surveillance program, revealed to exist by the New York Times in late 2005. While full details of the President's program remain unclear, Times reporter James Risen, relying on information provided by administration sources, has characterized the effort by the NSA as possibly the largest domestic spying operation since the 1960s, larger than anything conducted by the FBI or CIA inside the United States since the Vietnam War. Pursuant to the President's executive order, he continues, the NSA may be eavesdropping on as many as five hundred people in the United States at any moment, and it potentially has access to the phone calls and e-mails of millions more. Another report suggests that tens of thousands of Americans have had their calls monitored under the auspices of the NSA's program.
Shortly after the revelation of the domestic electronic surveillance program, United States Representative Michael Capuano (D-Massachusetts) asked professors of constitutional law teaching at Massachusetts-area law schools to provide him with opinions regarding the constitutionality of the President's program. We responded to Representative Capuano's request independently and in this article combine our responses to address more comprehensively the constitutional questions raised by the President's domestic electronic surveillance program. We conclude, first, that the President lacked the statutory or constitutional power to authorize such a program and, second, that the program runs afoul of the letter and the spirit of the constitutional protection against unreasonable searches and seizures embraced by the Fourth Amendment to the United States Constitution.
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