Friday, October 10, 2008
UPDATE, 10/11, 1:55 pm CT: Marty Lederman at Balkinization and Orin Kerr at the Volokh Conspiracy exchanged posts yesterday on the Fourth Amendment issues in these recent stories. Marty alluded to the bigger story of the program running afoul of EO 12333 and USSID-18.
ABC News reported yesterday that the NSA eavesdropped on "hundreds of US citizens overseas" as they made very personal calls--having nothing to do with terrorism--to friends and family back home. President Bush authorized the NSA eavesdropping program shortly after the 9/11 attacks; it allowed the NSA to intercept communications into and out of the United States of persons linked to Al Qaeda or other terrorist organizations. The program didn't come to public light, however, until December 2005, when the New York Times uncovered it.
Now Senator John D. Rockefeller (D-WVa), chair of the Senate Intelligence Committee, is investigating and considering holding hearings. The Washington Post story is here.
These most recent reports give us a chance to revisit the president's authority to order the program in the first place. For those of us teaching executive authority, this is a nice opportunity to see how the administration's wartime claims play in a context other than detention, trial, and treatment of alleged enemy combatants. The links below can supplement your assigned casebook reading, they can provide fodder for class exercises (like a moot court or a mock debate), or they can simply serve as a case study of the administration's claims of wartime power in an area that is in the news this week.
The ACLU and the Electronic Privacy Information Center, in a FOIA suit in the D.C. District, have as yet been unable to obtain the OLC memo detailing the legal authority for the program. (See their most recent filing, citing evidence of the memo, here.) But we probably have a pretty complete picture of the administration's legal position from related documents here and here. (Thanks to the EPIC for collecting these documents and making them available. The full collection is here.) These arguments are by now quite familiar: The executive has inherent Article II authority "to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States" (drawing on The Prize Cases); and Congress "confirmed" this authority under the AUMF, placing the president at the zenith of his power (drawing on Youngstown and Hamdi). The program is even in harmony with the FISA, because, claims the administration, FISA itself "contemplates that Congress may authorize such surveillance by a statute other than FISA" (here, the AUMF).
On the other side, plaintiff-appellee's brief in ACLU v. NSA, the 2007 Sixth Circuit case challenging the program, provides a range of arguments against the program. (The government in that appeal argued lack of standing and state secrets. The Sixth Circuit ruled that plaintiff-appellees lacked standing.) The full collection of case materials, including materials from the district court, is available at the ACLU web-site. (Thanks to the ACLU for making these available.)