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Hastings Constitutional Law Quarterly

Authors

Adrienne Ratner

Abstract

From 2002 through 2005, President George W. Bush unilaterally authorized the "Terrorist Surveillance Program" ("TSP"), a program of dragnet surveillance targeting hundreds of thousands of domestic telephone and email communications. Without the consent of Congress, the TSP subverted the statutory requirement for a judicial warrant for domestic surveillance and thereby violated the Foreign Intelligence Surveillance Act ("FISA"). The Bush Administration and the Obama Administration attempted to justify warrantless wiretapping with a number of post-hoc arguments that maximized the power of the executive branch in the face of heightened national security concerns.

Drawing on constitutional scholarship, Supreme Court cases, and legislative history, this paper argues that President Bush's unilateral authorization of the TSP was unconstitutional and an abuse of executive power. Authorizing warrantless wiretapping was not within the purview of the Commander in Chief as Commander in Chief powers were understood by the Founding Fathers and have been interpreted by the Supreme Court. In drafting FISA and upholding the requirement for a warrant in order to conduct domestic surveillance, Congress and the Supreme Court anticipated situations of national crisis and threats to national security such as occurred with September 11, 2001, and intentionally prescribed checks on the Executive Branch's power in order to protect civil liberties in the face of national security crises. Warrantless wiretapping flouted express congressional intent and judicial precedent.

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