The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment

ABSTRACT In the past year, there have been many revelations about the tactics used by the Bush administration to prosecute its war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This Article focuses on the revelation and widespread criticism of the Bush administration's operation of a warrantless electronic surveillance program to monitor international phone calls and e-mails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection infrastructure to further this effort. Fueling the controversy are undeniable similarities between the current surveillance program and the improper use of electronic surveillance that was listed as an article of impeachment for former President Richard M. Nixon. President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization for electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President. The President's choice to do so violates the Constitution and risks the definite sacrifice of individual rights for speculative gain from warrantless action. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. - President George W. Bush1 We join with you in the conviction that terrorism must be fought with the utmost vigor, but we also believe we must ensure this fight is conducted in a manner reflective of the highest American values. - Michael S. Greco2 INTRODUCTION President George W. Bush responded to revelations that his administration conducted warrantless electronic surveillance of American citizens by stating, "As President and Commander in Chief, I have the constitutional responsibility and the constitutional authority to protect our country. ... So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to Al Qaida ___ "3 President Bush attempted to defend this statement one month later by stating, "[0]ther Presidents have used the same authority I've had, to use technology to protect the American people."4 This latter statement is certainly accurate, though its truth is both eerie and unsettling. Most notably, the argument that authorization for the warrantless surveillance is provided directly from the constitutional powers granted to the President harkens back to President Richard M. Nixon' s statement that, "It' s quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation' s security are lawful, but which if undertaken by private persons, are not."5 The comparison between the actions taken by President George W. Bush and Richard M. Nixon are not merely academic but are unnervingly similar in substance, scope, and perceived authority. Both included warrantless electronic surveillance of American citizens. Both were justified by the relative administrations through an appeal to national security imperatives. Both resulted in public outcry and congressional inquiry.6 President Nixon acted in the context of a nation transfixed with the war in Vietnam.7 While the nation fixated on the deaths of over 50,000 Americans, President Nixon was preoccupied with the massive domestic protests that swept the country. …