Monday, December 19, 2005

Legal Analysis of President Bush's Surveillance

Professor Orin Kerr has written a careful legal analysis of the president's actions in light of the Fourth Amendment, the Foreign Intelligence Surveillance Act, the Authorization to Use Military Force, and the executive's inherent authority under Article II of the Constitution. His conclusion, in esence:

My answer is pretty tentative, but here it goes: Although it hinges
somewhat on technical details we don't know, it seems that the program was
probably constitutional but probably violated the federal law known as the
Foreign Intelligence Surveillance Act. My answer is extra-cautious for two
reasons. First, there is some wiggle room in FISA, depending on technical
details we don't know of how the surveillance was done. Second, there is at
least a colorable argument -- if, I think in the end, an unpersuasive one --
that the surveillance was authorized by the Authorization to Use Miltary Force
as construed in the Hamdi opinion.

If you are really interested in the rather complex legal aspects of this controversy, rather than the superficial headlines you'll see on CNN, Time, Newsweek, or the L.A. Times, then Professor Kerr's post is an important read.


Anonymous Anonymous said...

Professor Kerr's analysis is curious. He cites four issues -- FISA, the Fourth Amendment, Article II and the authorization to use force.

I'm not a lawyer so I reviewed the source documents briefly.

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Frankly, I don't see a lot of wiggle room there.

Article II is just as straghtforward. The enumerated powers are neither vague nor open ended.

FISA expressly states the manner in which the executive may electronically bug within the country. If the descriptions of the President's direction to the NSA is accurate, that law was clearly violated.

The authorization to use force is a little vague, I suppose. It gives the executive the authority to use all "necessary and appropriate force" agaist those involed in the Sept 11 attack. Stretching that authorization to surveil people in the US is certainly creative.

Paraphrasing Cicero, no one who supports President Bush's position in regard to his order for NSA surveillance in the US and calls themselves a strict constructionist should be able to look at anyone else with the same opinion without laughing.

Merry Christmas 

Posted by Scott Clayton

Tuesday, December 20, 2005 9:56:00 AM  

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