The Terrorist Surveillance Program and the Constitution

Abstract

In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which authorized the National Security Agency to intercept phone calls and emails traveling into and out of the United States. One of the parties to the communication had to be someone suspected of being a member of al Qaeda. This surveillance took place outside the framework of the Foreign Intelligence Surveillance Act, which since 1978 has regulated the interception of communications entering or leaving the United States. This Essay argues that the TSP represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime. Part I argues that critics of the program misunderstand the separation of powers between the President and Congress in wartime. Part II traces the confusion to a failure to properly understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such as al Qaeda. Part III explains that because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity. It draws on historical examples to show a long practice of presidential authority in this area.

Keywords: terrorism, surveillance, president, separation of powers, intelligence