What is the Legality of the NSA Domestic Surveillance Program?

Do you think that eavesdropping and wiretapping of US citizens is a necessary fact of life in this day and age? Or do you think that wiretapping without warrants might violate the US Constitution's fourth admendment? A good resource to check out is the website of the Council on Foreign Relations. Their website states that they are a non-partison source of information. Recently, cfr.org asked five lawyers and legal scholars to share their thoughts on the legality of the NSA Domestic Surveillance Program.

One of the legal scholars, Dakota Rudesill, suggests that:

"As a legal question, we are going to hear three interrelated debates. The first is about the Fourth Amendment. How do the Fourth Amendment's basic guarantee of freedom from unreasonable searches and seizures and its warrant requirement constrain congressional legislation and executive activity in the war on terrorism? The other debates are about inherent constitutional executive and congressional war powers, and how, in light of those constitutional powers, we should read together two statutes. Those statutes are the FISA law that governs electronic surveillance specifically, and the Authorization for the Use of Military Force that authorizes military operations post-9/11 generally.

The Bush administration has advanced a sweeping reading of presidential war power, saying that AUMF has put the president's constitutional power as commander-in-chief of the armed forces at its maximum, and that includes broad authority for warrantless surveillance of communications with some foreign terrorist link. On the other hand, we can expect to hear from many on Capitol Hill a different line of argument, that the Congress can restrict executive power under the legislative branch's constitutional authority "for the government and regulation" of the armed forces, that Congress intended to regulate NSA and all wiretaps under the FISA statute, and that Congress did not intend to create a way around FISA in the post-9/11 AUMF. Therefore, the argument will run, the administration should have either gotten FISA warrants or worked with Congress to amend FISA. This is a profoundly important debate, and everyone interested in national security and foreign policy should pay close attention." (emphasis added)

Categories: NSA Domestic Surveillance, CFR