THE CONSTITUTION AND THE NSA WARRANTLESS WIRETAPPING PROGRAM: A FOURTH AMENDMENT VIOLATION?

ABSTRACT The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between persons residing in the United States anal persons believed to be affiliated with terrorist organizations. A firestorm of controversy emerged with heated debate about the legality of the NSA program. Legal scholars' opinions about the legality of the program widely varied, with some suggesting that the program was a glaring violation of the law while others argued that the President was within the law and that his actions were necessary to protect the security of the nation. This article addresses whether the NSA spying program violates the Fourth Amendment by examining various legal cases and policy issues. The existing legal literature addressing this question has primarily focused on whether the NSA program violates the Foreign Intelligence Surveillance Act. This article pushes the current debate further by addressing the equally important, but rather difficult question, of whether the NSA spying program violates the Fourth Amendment. Since the government has not revealed the precise details of the NSA warrantless wiretapping program, the article will construct, and then examine the ramifications of two different models of how the NSA program likely functions in order to assess the constitutionality of the program as a whole. The article argues that the narrow model of the NSA program is constitutional and would be upheld by the courts, whereas the expansive model of the NSA program would be declared unconstitutional because it violates the Fourth Amendment. The article emphasizes the critically important role that the neutral judge, by only issuing to the government warrants based upon probable cause, plays in upholding and safeguarding the cherished privacy rights the Fourth Amendment guarantees all Americans. TABLE OF CONTENTS I. Introduction II. Application of the Fourth Amendment to the NSA Program A. Applicability of the Warrants Requirement to the NSA Program 1. Fourth Amendment Exceptions That Could Apply to the NSA Program i. The "Special Needs" Exception ii. The Possibility of a Foreign Surveillance Exception. B. Applicability of the Reasonableness Approach to the NSA Program III. Conclusion I. INTRODUCTION On September 11, 2001, America suffered the most serious and devastating attack ever perpetrated on U.S. soil. (1) The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between persons residing in the United States and persons believed to be affiliated with terrorist organizations. In December 2005, the public became aware of the warrantless wiretapping program when the New York Times ran a report on the program. (2) The specific details of the wiretapping program have not been disclosed to the public, but it is not disputed that the program allowed the NSA to monitor international phone calls and e-mails without first seeking a search warrant from a neutral judge. Shortly after the public became aware that a critical element of the NSA program included allowing the NSA, a part of the Executive Branch, to monitor international communications without first seeking the approval of a neutral judge, a firestorm of controversy emerged with heated debate about the legality of the NSA program. (3) Not surprisingly, legal scholars' opinions about the legality of the program widely varied. Some legal scholars suggested that the program was a glaring violation of the law and a gross invasion of the cherished privacy rights of the American people. Indeed, some even suggested that the NSA program was akin to the President proclaiming himself King and that this exercise of unchecked executive power amounted to tyranny. …