Congress Has the Power to Enforce the Bill of Rights against the Federal Government; Therefore Fisa Is Constitutional and the President's Terrorist Surveillance Program Is Illegal

Article excerpt


The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence Surveillance Act (FISA), the federal law that requires the government to obtain a warrant from a special court before engaging in electronic eavesdropping for the purpose of obtaining foreign intelligence. In spite of this law, the National Security Agency has conducted a program of warrantless surveillance called the Terrorist Surveillance Program.

The Attorney General made a nuanced and unique argument in support of the Terrorist Surveillance Program. He suggested that wiretapping for foreign intelligence is more central to the role of the President than it is to the role of Congress, and therefore FISA, the federal statute which requires the President to obtain warrants, is unconstitutional. In response to that argument, this Article contends that Congress has the power to enforce the Bill of Rights against the federal government and that FISA does represent an exercise by Congress of one of its core functions - to protect the rights of American citizens.

The Attorney General also contended that FISA was amended by the Authorization for Use of Military Force (AUMF), adopted September 1 8, 200 1 . This point has been addressed by other legal scholars, and drawing upon their work, this Article identifies six principal reasons why the AUMF cannot be construed as either repealing or suspending the warrant requirements of FISA.

Finally, the Attorney General argued that FISA is unconstitutional under a broad reading of executive power called the theory of the "unitary executive." This Article contends that this theory was rejected by the four great Justices of the Roosevelt Court, Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson, in the case of Youngstown Sheet & Tube v. Sawyer. Justice Jackson, in particular, eloquently argued that the President is subject to the rule of law. This Article also suggests that the opinion of Anthony Kennedy in Clinton v. City of New York is relevant. In that case, Justice Kennedy made "individual liberty" the centerpiece of the separation of powers analysis. The Article concludes that both the rule of law and individual liberty are served by upholding the constitutionality of FISA.

Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.1

- Justice Anthony Kennedy


Shortly after the September 11, 2001, terrorist attacks on the United States, President George W. Bush ordered the National Security Agency (NSA) to undertake a secret program - called the "Terrorist Surveillance Program" - of wiretapping the international telephone calls and email messages of Americans without obtaining warrants.2 This program continued for over four years,3 during which time it was in apparent violation of a federal law, the Foreign Intelligence Surveillance Act (FISA).4 The Attorney General, Alberto R. Gonzales, released a memorandum arguing that the Terrorist Surveillance Program is lawful under FISA, and in the alternative, that FISA is unconstitutional because it invades the inherent constitutional authority of the President.5 A number of legal scholars have written responses concluding that FISA is constitutional and that the Terrorist Surveillance Program is illegal,6 but several of these scholars have assumed that Congress derives its authority to enact FISA primarily from the Commerce Clause and its power to make laws regulating the military. …


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