Title

Domestic Surveillance for International Terrorists: Presidential Power and Fourth Amendment Limits

Abstract

This article examines the recently disclosed, presidentially authorized program of warrantless electronic surveillance by the National Security Agency (NSA). Critics of the program say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Supporters counter that it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on an aspect of the controversy to which neither critics nor supporters have paid much attention: the connection between the issues of whether the NSA program violates FISA and whether it violates the Fourth Amendment. The article concludes that the President can authorize surveillance that violates FISA when such surveillance "outside FISA" is reasonably necessary to respond to a genuine national security emergency. That same emergency will ordinarily bring the surveillance within the exigent circumstances doctrine of the Fourth Amendment, as modified by the special needs doctrine. This overlap between presidential power to ignore an Act of Congress and to act free of traditional Fourth Amendment constraints is not mere coincidence. Both the separation of powers doctrine and Fourth Amendment doctrine limit executive power but carve out an area in which the President may act free of ordinary constraints when necessary to protect the nation. It is hoped that the analysis underlying this conclusion is more nuanced (and stakes out a more moderate position) than that offered by most critics and supporters of the NSA program. The analysis may, therefore, supply a legal foundation for principled and politically feasible legislative reform. In any event, the analysis offered here also informs the broad, ongoing debate over the proper roles of Congress and the federal courts in enforcing the Fourth Amendment.

Disciplines

Constitutional Law

Date of this Version

August 2006