This is my sandbox
mmmbeer T / C 21:27, 27 October 2005 (UTC) mmmbeer T / C / ? 21:35, 27 October 2005 (UTC) mmmbeer T / C / ? 23:12, 14 December 2005 (UTC)
Since the details of the NSA surveillance operation are still somewhat unknown, the ultimate legality is largely unknowable. The debate surrounding President Bush’s authorization of warrantless surveillance is principally about the extent of the authority the Executive Branch derives from its constitutional authority to protect the nation from attack.
In 1978, Congress passed the Foreign Intelligence Surveillance Act, known as FISA, permitting the Justice Department conduct physical and electronic surveillance for “foreign intelligence information”. FISA provides two mechanisms to obtain warrants. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC). In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. § 1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. In this situation, the surveillance must, among other things, have no substantial likelihood that the surveillance will target a United States person and be directed solely at communications used exclusively by foreign powers. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute.
However, the authorization granted by the President to the NSA apparently involves neither prong of FISA, or any retroactive authorization from the FISC. Instead, the administration argues that the power is one granted by the Constitution. Case law supports the idea that the President has the “inherent authority to conduct warrantless search to obtain foreign intelligence information.” Article II of the Constitution of the United States of America makes the President Commander in Chief with the responsibility to protect the Nation. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).
Arguably, surveillance of foreign intelligence fits within the rubric of force necessary and appropriate use of force to repel aggressive acts. Indeed, a number of cases have held that a number of activities are within the "necessary and appropriate". In Hamdi v. Rumsfeld, for example, a plurality opinion of the Supreme Court found that the detention of an U.S. citizen was "clearly and unmistakably" a "fundamental incident of waging war".
In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, FISA could not restrict the President because the Legislative branch cannot take away power given to the Executive branch. However, In Re Sealed Case was not asked to examine this question explicitly and clearly stated that they “take for granted” that these cases are correct and they assumed this was correct.
Furthermore, following the September 11, 2001 attacks, Congress’ passed the Authorization for the Use of Military Force (AUMF) authorizing the President to "use all necessary… force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks." §2(a). It is argued, with respect to FISA, no violation has occurred because the AUMF is statutory authorization. This, however, is probably limited to surveillance of those individuals connected to the attacks. It is unclear that the AUMF covers all the suspected surveillance at issue, even assuming the AUMF is statutory authorization as required by FISA.
On the other hand, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness, and the courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement." In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution.
In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President.
Importantly, however, the courts addressing the President’s inherent authority have done so with respect to surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether such power extends to very broad authorization, which may more broadly cover the communications of US persons.