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Hastings Constitutional Law Quarterly

Abstract

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called "Terrorist Surveillance Program" (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, 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 the overlooked connection between the issues of whether the TSP (1) falls within the President's powers; or (2) violates the Fourth Amendment. The article concludes that the President has inherent power to authorize surveillance - even surveillance that violates a generally valid Act of Congress, such as the FISA -- when such surveillance is reasonably necessary to respond to a genuine national security emergency. Further, a genuine national security emergency will ordinarily bring warrantless electronic surveillance within the exigent circumstances doctrine of the Fourth Amendment, as modified by the special needs doctrine. This connection between presidential power to ignore an Act of Congress and to act unfettered by traditional Fourth Amendment restrictions 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. The article applies this analysis to the TSP from its inception to its current status under the Protect America Act of 2007.

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