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Presidential Power and Warrantless Wiretapping
Soon after the September 11 terrorist attacks, President George W. Bush issued directives authorizing the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States who communicated via telephone or e-mail with persons outside the United States. These directives permitted the NSA to engage in what is sometimes called “data mining,” a process of sifting through millions of calls and e-mails searching for words and phrases that might signal terrorist involvement. Under the Foreign Intelligence Surveillance Act (FISA), the government is required to obtain warrants for such surveillance from the Foreign Intelligence Surveillance Court, which holds secret sessions at the Justice Department. President Bush, however, decided to bypass statutory restrictions. Encountering a firestorm of protest when the existence of the secret orders was leaked to the press in 2005, President Bush and his advisers asserted that the president had acted properly.
The president said he based his actions on Article II of the Constitution and Congress’s 2001 resolution giving the president the authority to use “all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided” the September 11 attacks against the United States. The White House also asserted that FISA does not apply during wartime. A 2006 Justice Department memorandum asserted that the president’s position was supported by the Federalist Papers, numerous court cases, the writings of Republican and Democratic presidents, and many scholarly papers.a One important federal court decision that seemed to support the president’s view was the case of Campbell v. Clinton, decided in 2000. In this case, the court said that the president’s authority as commander in chief extends to the “independent authority to repel aggressive acts . . . without specific congressional authorization” and without court review of the level of force selected. In 2007, a federal appeals court declined to halt the NSA’s eavesdropping program on the grounds that the group challenging the program lacked standing. The court did not comment on the program itself. In 2010, however, a federal district judge ruled the warrantless surveillance program illegal. Although the case had begun under the Bush administration, the Obama administration continued to defend the program in court, to the dismay of civil libertarians. [1]
Some legal scholars have echoed the administrations’ position. The presidential legal advisor John Yoo said in a 2001 memorandum that no statute enacted by Congress “can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response.”b Another expert who defended the president’s actions is the former associate attorney general John Schmidt. The president, in Schmidt’s view, has a constitutional duty to gather foreign intelligence and argues that the enactment of FISA did not alter the president’s constitutional authority.
Many top legal scholars, however, believe that the president’s actions were illegal. They argue that FISA clearly makes warrantless wiretapping illegal and that the president knowingly violated the law through his orders. Similarly, in 2006, the American Bar Association issued a statement denouncing the warrantless domestic surveillance program and accusing the president of exceeding his constitutional power.
Critics of the program contend that the dangers of unfettered presidential power inherent in President Bush’s actions outweigh the likely benefits. Some critics have said that the president’s logic in defending his actions seemed to suggest that there are no restrictions on presidential power. The Georgetown law professor Jonathon Turley said, “There’s no limiting principle to that theory.”c
[1] Savage, Charlie and James Risen. “Federal Judge Finds N.S.A. Wiretaps Were Illegal,” New York Times. March 31, 2010. Available at http://www.nytimes.com/2010/04/01/us/01nsa.html#
a. Eric Lichtblau and James Risen, “Legal Rationale By Justice Department On Spying Effort,” New York Times, January 20, 2006, p. 1.
b. Scott Shane, “Behind Power, One Principle,” New York Times, December 17, 2005, p. 1. Yoo’s views are more fully spelled out in his book The Powers of War and Peace (Chicago: University of Chicago Press, 2005).
c. Joseph Curl, “Legal Scholars Split on Wiretaps,” Washington Times, last occurring January 18, 2006, p. A4.[Clarify this citation? is “last occurring” necessary?]
| 1. Article II of the Constitution establishes the president as commander in chief. Article I, however, gives Congress the power to declare war. What roles should the two branches play in exercising war powers?
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| 2. Past presidents have often assumed expanded powers during times of war. Should the threat of terrorism influence our debates about the Constitution and the laws, particularly as they relate to presidential power? Who or what should be responsible for checking presidents in their use of those expanded powers?
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