Title: NSA domestic surveillance: Presidential power and the Fourth Amendment
Abstract: In 2001, the President began spying on Americans again, under circumstances
that recalled abuses disclosed almost 30 years earlier by the Church Committee.1The domestic spying program began soon after the September 11, 2001 terrorist
attacks in the United States and was conducted by the National Security Agency
(NSA) for the purpose of detecting and thwarting threats posed by international
terrorists.2 The NSA program, which came to be known as the “Terrorist Surveillance Program” (sometimes hereinafter referred to as TSP or the NSA
Program) raised two legal issues of continuing importance. One issue is whether
the TSP violated the Foreign Intelligence Surveillance Act of 1978 (FISA), or
whether, instead, FISA itself is unconstitutional to the extent it purported to bar
the TSP.3 This first issue arose because the TSP involved electronic surveillance
(e.g., wiretapping) that was subject to FISA but occurred without FISA compliance. The issue of whether the TSP trumped FISA, or vice versa, is a separation of powers issue that continues to haunt the President’s conduct of national
security surveillance, which lacks statutory authorization. The second issue is
whether the TSP violated the Fourth Amendment.4 The Fourth Amendment
issue arose because surveillance under the TSP occurred without prior judicial
authorization or traditional probable cause.5 It is proper that public debate on the
surveillance program distinguished the separation of powers issue from the
Fourth Amendment issue; they require different analyses. Public debate did not,
however, pay enough attention to the connection between the FISA issue and the
Fourth Amendment issue. This chapter attempts to fill the gap.
Publication Year: 2008
Publication Date: 2008-07-01
Language: en
Type: book-chapter
Indexed In: ['crossref']
Access and Citation
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot