Before beginning an analysis of the issues surrounding the NSA's eavesdropping, one must first recognize that much of the current discussion on the subject, on both sides, is very much off-base. On the pro-eavesdropping side (for a serious lack of a better term), many argue that the matter is settled by the question of whether the president's war powers- from Article II and/or from the Authorization for the Use of Military Force ("AUMF") Congress passed in the wake of 9/11- override the requirements imposed on the surveillance of foreign agents by Foriegn Intelligence Surveillance Act ("FISA"). On the other hand, many opponents of the eavesdropping program seem to believe that merely mentioning the words "Fourth Amendment" acts as a magical talisman that makes the NSA program unconstitutional. Both sides are right in some limited respects, but very wrong in others.
First, let's look at nature and scope of the president's power to order surveillance of the kind involved in the NSA program. Section 2 of Art. II is the "Commander and Chief" clause (my unscholarly term):
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Of course, this language makes no explicit mention of intelligence collection, but such activities are an integral part of warmaking, and the law has long recognized that reality. More immediately, both the D.C. Circuit Court of Appeals and the secret FISA appellate court (albeit in dicta in one of its few unclassified opinions) have recognized that this language from Article II grants President Bush the power to command U.S. agencies in their collection of intelligence against Al Qaida, in the much the same way that he may command the U.S. Army to act against Al Qaida.
It is fairly well settled that while Congress, under Article I, governs the raising and funding of military forces, Section 2 of Article II makes the president supreme in deciding how those forces are to be used in a time of military conflict. It is obvious that the United States is in a state of military conflict with Al Qaida, a conflict which Congress recognized and authorized by passing the AUMF. The importance of the AUMF in the current controversy is not in whether its language alone impliedly authorizes the NSA's program; that question is actually quite irrelevant. Rather, the importance of the AUMF is that it essentially declares Al Qaida a military enemy of the United States. This recognition empowers the president to use his Article II Commander and Chief powers, which Congress lacks the authority to limit directly, against Al Qaida. In other words, it is the text of the constitution, not the text of the AUMF, which grants the president the power to collect intelligence against Al Qaida, and Congress lacks the authority to directly regulate the use of that power.
Now, the administration and many conservative commentators have made this point ad nausium, and, indeed, if the NSA program merely involved communications that occurred only between suspected Al Qaida personnel operating in other countries, an inquiry into the program's legality would certainly stop here. However, the NSA program is controversial exactly because it is geared toward intercepting communications between American citizens/nationals and suspected Al Qaida members abroad. And this, much to the chagrin of many conservatives, brings the Fourth Amendment into play. Under modern law, the Fourth Amendment's prohibition against "unreasonable" searches and seizures extends to telephone and electronic communications, including international communications, involving Americans. (By the way, the argument that a person who knows he is talking to an Al Qaida operative enjoys no expectation of privacy is unavailing; such expectations of privacy are measured from the hypothetical "innocent communicator's" point of view). Thus, although Congress cannot directly limit the President's intelligence gathering activities against Al Qaida, the Fourth Amendment does limit such activities when Americans are targeted.
At this point, we run into the most significant distortion that the "anti-eavesdropping" side has contributed to the debate. Generally speaking, in order for electronic eavesdropping to be reasonable under the Fourth Amendment, the government must first secure a search warrant that is supported by probable cause. Many liberals have incorrectly taken this to be the end of the issue. However, the Supreme Court's case law has long recognized that in certain special circumstances government searches need not meet the warrant or probable cause requirements in order to be reasonable. These "special needs" contexts- which include circumstances such as government searches of the homes of those on probation and drug testing of students by public school officials- need only meet a balancing test for reasonableness: the government's legitimate interests in carrying out the search must outweigh the privacy interests of those affected.
The main criteria for shifting to a "special needs" balancing approach is whether important government interests (other than normal law enforcement interests) would be significantly hampered by requiring warrants and probable cause. I believe that the Bush Administration's reasons for surveilling international communications fall within this category. The purpose of the NSA program is not simply to pursue typical law enforcement-like goals, but to expose agents of a foreign terrorist power operating within the United States. Granted, agents who were so exposed would almost certainly be detained under military authority, but these situations still strike me as being very different from normal, civilian, law enforcement situations. Additionally, applying the warrant and probable cause requirements to such programs could significantly hamper the usefulness of such programs by setting evidentiary and practical requirements that would be too onerous to meet in all but a few situations. The reasonableness balancing approach would allow courts to take into account the government's special and compelling reasons for eavesdropping while still making sure that the government's activities are related to and serve those special interests.
So where does all of that leave us? The intercepts conducted under the NSA's program must meet the requirements of the Fourth Amendment, but Congress lacks the power to impose any greater restrictions on the President's Article II war powers. Therefore, any restrictions set forth in FISA that go beyond the restrictions of the Fourth Amendment are unconstitutional.
The relevant provisions of FISA are summed up nicely in an article from The Boston Globe:
The law in question, the Foreign Intelligence Surveillance Act, or FISA, which has governed domestic surveillance since 1978, requires the government to apply to a special court for a warrant in order to conduct surveillance for intelligence purposes on US soil. In a warrant application, investigators must show they have probable cause to believe that their target is a foreign power or its agent. The NSA program approved by President Bush did not go through the FISA court-instead, the agency has been tapping the phones and reading the e-mail of US residents without warrants.
There are two elements of concern here: the requirement that the government get a court order for each target that they wish to surveil and the requirement that such orders may only be granted if probable cause exists. The question is whether these (or greater) restrictions are required by the Fourth Amendment. As already stated, I believe that under a special needs analysis, the Fourth Amendment does not require individualized probable cause in these circumstances. The court order requirement seems a closer issue: given that the government's monitoring is classified, an individual being monitored would never know of that fact and would thus never be able to challenge the monitoring. In my view, the Fourth Amendment (and/or the due process clause) requires some sort of court order process in such circumstances, but not necessarily that set down in FISA.
The precise restrictions required by the Fourth Amendment are beyond the scope of this little missive. The take-home point is that the determination must be one by the courts of what the constitution requires; the restrictions in the FISA statute are unconstitutional nullities.
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