Wartime Executive Power: Are Warrantless Wiretaps Legal?

Article excerpt

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.

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.

Does NSA Warrantless Surveillance Violate the Fourth Amendment?

The President has contended that NSA warrantless surveillance does not offend Fourth Amendment requirements that all searches be reasonable. That contention is correct as far as it goes; but it does not go far enough.

To begin, the Fourth Amendment requires probable cause in order to obtain a warrant, but it does not require a warrant for all searches. There are numerous instances of permissible warrantless searches-for example, hot pursuit, evanescent evidence, search incident to arrest, stop and frisk, automobile searches, plain-view searches, consent searches, and administrative searches. In fact, federal courts have recognized a border-search exception and, within that exception, a narrow exception for monitoring certain international postal mail. As for a national-security exception, that remains an open issue. In United States v. United States District Court (1972), known as the Keith case, the court said there would be no exception if a domestic organization were involved; but there might be an exception if a foreign power were involved.

Thus the administration can credibly argue that it may conduct some types of warrantless surveillance without violating the Fourth Amendment. And because the president's Article II powers are elevated during time of war-assuming the AUMF to be the functional, if not legal, equivalent of a declaration of war-his post-9/11 authorization of NSA warrantless surveillance might be justifiable if Congress had not expressly disapproved.

But Congress did expressly disapprove, in the FISA statute. Therefore, the President's assertion of a nationalsecurity exception that encompasses the NSA program misses the point. The proper question is not whether the president has inherent authority to relax the "reasonableness" standard of the Fourth Amendment. …