Tuesday, August 22, 2006

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part II]

The following is the second in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will likely be 3 parts in total, plus a summary. David Kirschner is a good friend whose bio is in the second footnote of Part I. Two members of this blog had him as a professor as well - myself and CWY.

Whether the President’s authorization of the National Security Agency’s terrorism wiretap program is within his constitutional powers necessitates an analysis of the language contained in the Constitution, which is always the primary source of law. Article II of the U. S. Constitution provides that, “The executive Power shall be vested in a President of the United states of America. . . . shall be Commander in Chief of the army and navy of the Unites States . . . [and] shall take Care that the Laws be faithfully executed.”[3] In 1936, the U. S. Supreme Court, relying on this language, stated that it established the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”[4] It appears then, that according to both the language in the Constitution and the Supreme Court’s interpretation, matters of national security are well within the presidential powers.

Indeed, presidential authority to conduct warrantless eavesdropping against spies and foreign enemy powers, particularly in matters of national security, is far from contemporary. President Franklin Roosevelt first authorized the use of wiretaps on national security grounds during World War II.[5] In 1967, the Supreme Court in Katz v. United States,[6] held that the Fourth Amendment required issuance of a court order authorizing the overhearing of the content of telephone conversations since the participants had an “expectation of privacy.”[7] However, the Court refused to extend the same protection to wiretap applications “involving the national security.”

On the heels of the Katz opinion, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968.[8] This Act expressly excluded Title III orders, as they became known, from national security matters. That Act provided, as follows:

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities (emphasis added). Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

Until 1972, the Supreme Court had not directly addressed the lawfulness of national security wiretaps. In the “Keith”[9] case, the defendant, Plamondon, was charged with the bombing of a Central Intelligence Agency office in Michigan.[10] During pretrial proceedings, the defendant moved to compel the United States to disclose electronic surveillance information that had been obtained without a warrant.[11] The Government, opposing disclosure of the surveillance materials, claimed that the surveillance was a reasonable exercise of the President’s power (exercised through the Attorney General) “to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government (emphasis added).”[12] The Supreme Court rejected the Government’s claim unanimously holding that Title III, by its terms, did not apply to the protection of “national security information” and that the statute did not limit “the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means . . . (emphasis added).”[13]



[3] U.S. CONST., art. II, §§ 1, 2 & 3.

[4] United States V. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

[5] Comment: Extremism in the Defense of Liberty?: The Foreign Intelligence Surveillance Act and the Significance of the USA PATRIOT ACT, 77 TUL. L. REV. 465, 468 (2002).

[6] Katz v. United States, 389 U.S. 347, 358 n.23 (1967).

[7] Id.

[8] 18 U.S.C. §§§ 2510-2520.

[9] United States v. United States Dist. Ct., 407 U.S. 297 (1972) [hereinafter referred to as “Keith”].

[10] Id. at 299.

[11] Id. at 299-300. See also Id. at 300 n.2.

[12] See id. at 301.

[13] Id.

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