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Hastings Constitutional Law Quarterly

Authors

John Cary Sims

Abstract

On December 16, 2005, The New York Times disclosed the existence of a secret electronic surveillance program being carried out by the National Security Agency (NSA) that involves government interception of the contents of international communications without obtaining warrants. The Foreign Intelligence Surveillance Act of 1978 (FISA), which was enacted following the Supreme Court's decision in United States v. United States District Court (1972) and the Church Committee's disclosure of improper NSA activities, created a comprehensive system regulating electronic surveillance for foreign intelligence purposes. Warrants are required when such surveillance takes place within the United States or when it targets United States persons (citizens or permanent residents) within the United States. FISA warrants are issued by the Foreign Intelligence Surveillance Court (FISC) upon a showing that there is probable cause to believe that the target is a foreign power or the agent of a foreign power. The Bush administration has been very successful so far in withholding from the public the details of the warrantless surveillance program, making a precise assessment of its legality very difficult. However, it appears that the core violation being committed is the targeting of international calls involving United States persons in the United States who appear to have had at least some contact with someone connected to al Qaeda, but where it is uncertain that the FISC would find that there is probable cause to believe that the potential target is an agent of a foreign power. FISA plainly requires a warrant in these situations. The Authorization for the Use of Military Force passed by Congress immediately after 9/11 cannot plausibly be taken to have provided statutory authorization for warrantless interceptions under these circumstances. Moreover, the Administration's claim that it has "inherent constitutional authority" to engage in warrantless surveillance flies in the face of Justice Jackson's concurrence in the Steel Seizure Case. The President's power at its lowest ebb here, because he is acting contrary to FISA.

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