Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
Wartime Executive Power: Are Warrantless Wiretaps Legal?
"In this article, I address only the legality of the NSA program, not the policy question whether the program is necessary and effective from a national-security perspective. If the program is both essential and illegal, then the obvious choices are to change the program so that it complies with the law, or change the law so that it authorizes the program.
President Bush has authorized the National Security Agency (NSA) to eavesdrop, without obtaining a warrant, on telephone calls, e-mails, and other communications between U.S. persons in the United States and persons outside the United States. For understandable reasons, the operational details of the NSA program are secret, as are the details of the executive order that authorized the program. But Attorney General Alberto Gonzales has stated that surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person 'affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.'
The attorney general has declared that the President’s authority rests on the post-9/11 Authorization for Use of Military Force (AUMF) and the president’s inherent wartime powers under Article II of the U.S. Constitution, which includes authority to gather 'signals intelligence' on the enemy.
My conclusions, as elaborated below, are: First, the president has some latitude under the 'Executive Power' and 'Commander-in-Chief' Clauses of Article II, even lacking explicit congressional approval, to authorize NSA warrantless surveillance without violating Fourth Amendment protections against 'unreasonable' searches. But second, if Congress has expressly prohibited such surveillance (as it has under FISA, the Foreign Intelligence Surveillance Act), then the statute binds the president unless there are grounds to conclude that the statute does not apply. Third, in the case at hand, there are no grounds for such a conclusion—that is, neither the AUMF nor the president’s inherent powers trump the express prohibition in the FISA statute."
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