Constitutionality and legality of the eavesdropping program
VOLOKH at law.ucla.edu
Mon Dec 19 14:31:30 PST 2005
My coblogger Orin Kerr, who specializes in (among other things)
the Fourth Amendment, has a long post on the subject at
2; because it's so long, I thought I'd just post an excerpt here. (Note
that the post is intended to be accessible to our lay readers, but is
detailed enough to be helpful to academic debate.)
Was the secret NSA surveillance program legal? Was it constitutional?
Did it violate federal statutory law? It turns out these are hard
questions, but I wanted to try my best to answer them. My answer is
pretty tentative, but here it goes: Although it hinges somewhat on
technical details we don't know, it seems that the program was probably
constitutional but probably violated the federal law known as the
Foreign Intelligence Surveillance Act. My answer is extra-cautious for
two reasons. First, there is some wiggle room in FISA, depending on
technical details we don't know of how the surveillance was done.
Second, there is at least a colorable argument -- if, I think in the
end, an unpersuasive one -- that the surveillance was authorized by the
Authorization to Use Miltary Force as construed in the Hamdi opinion.
This is a really long post, so let me tell you where I'm going. I'm
going to start with the Fourth Amendment; then turn to FISA; next look
to the Authorization to Use Military Force; and conclude by looking at
claim that the surveillance was justified by the inherent authority of
Article II. And before I start, let me be clear that nothing in this
post is intended to express or reflect a normative take of whether the
surveillance program is a good idea or a bad idea. In other words, I'm
just trying to answer what the law is, not say what the law should be.
If you think my analysis is wrong, please let me know in the comment
section; I'd be delighted to post a correction. . . .
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