Main article: NSA electronic surveillance program
Soon after the September 11, 2001 attacks (or perhaps earlier), U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls of a person in the United States without obtaining a warrant from a FISA court either before or after the surveillance. The complete details of this authorization are not known, but it is believed to cover telephone calls involving a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates and with one party to the call outside the
Public knowledge of this program promptly led to a major national controversy over such issues as:
· Legality of mass surveillance in the
· The legality of the leaking and publication of classified information.
· Implications for
· The Unitary theory of executive power that can allegedly supersede statutes such as FISA passed by Congress
The Administration's position is that President Bush's authority to ignore FISA and approve such surveillance programs personally, stems from two sources:
· his inherent powers as described in Article Two of the United States Constitution, Section Two.
The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures, although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities. The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act. However, it seems necessary to take such statements cautiously, given that the Administration considers its current program also to be conducted pursuant to applicable law; the meaning that might be attributed to such a statement is not necessarily the meaning that would be attributed in the light of more detailed information.
According to one source, historically (prior to the above mass expansion):
"[O]fficials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the
at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials."  United States
History of wartime warrantless surveillence in the USA
Main article: Warrantless searches in the United States
The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the
Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA.   These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorized his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".
The debate surrounding President Bush's authorization of warrantless surveillance is principally about checks and balances and separation of powers. Some lawyers believe the ultimate issue of legality is largely unknowable until the full details of the NSA surveillance operation are known; others, like Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, point out that FISA clearly makes the wiretapping illegal, and that the president's own admissions already constitute sufficient evidence of a violation of the Constitution and the criminal penalties of FISA, without requiring further factual evidence; and still others, like John Schmidt, former Associate Attorney General,  Douglas Kmiec, chair of Pepperdine Law School, and John Eastman, Chapman Law Professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, claim either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war (although FISA explicitly states that it applies in a modified form in wartime); see "Third party legal analysis" below. The American Bar Association, of which more than half of all lawyers in the nation are members, expressly condemns the program as a blatant violation of the law.
As a general rule, the Supreme Court has consistently held since Katz v. United States (1967), that the monitoring and recording of private conversations constitutes an "unreasonable search and seizure" barred by the Fourth Amendment.
There are five main areas of legal issue: FISA and FISA oversight issues, constitutionality issues, the extent of authority created by the Authorization of Use of Military Force (AUMF) by Congress, issues relating to the program's classified nature, and admissibility of evidence obtained from the program.
The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a
On the December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:
As explained above. the President determined that it was that was very necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the
Fourteen constitutional scholars and former government officials wrote a response dated January 9, 2006 to the Department of Justice letter, and transmitted it to Chairs and Ranking Members of the House and Senate concluding that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law." 
An excerpt from their letter:
In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.
On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrant less domestic surveillance of United States citizens." An excerpt of the proposed Leahy-Kennedy resolution follows:  
Whereas Congress created the FISA court to review wiretapping applications for domestic electronic surveillance to be conducted by any Federal agency;
Whereas the Foreign Intelligence Surveillance Act of 1978 provides specific exceptions that allow the President to authorize warrantless electronic surveillance for foreign intelligence purposes (1) in emergency situations, provided an application for judicial approval from a FISA court is made within 72 hours; and (2) within 15 calendar days following a declaration of war by Congress;
Whereas the Foreign Intelligence Surveillance Act of 1978 makes criminal any electronic surveillance not authorized by statute;
Whereas the Foreign Intelligence Surveillance Act of 1978 has been amended over time by Congress since the September 11, 2001, attacks on the United States;
Whereas President George W. Bush has confirmed that his administration engages in warrantless electronic surveillance of Americans inside the United States and that he has authorized such warrant less surveillance more than 30 times since September 11, 2001;
On January 27, in response to growing criticism, the Department of Justice released an informal four page document titled The NSA Program to Detect and Prevent Terrorist Attacks - Myth vs Reality defending the NSA program. It argued that "[t]he NSA activities described by the President are consistent with FISA" on the grounds that:
· FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.
· The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President’s well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.
Separation of Powers and Unitary Executive theory
However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory using the interpretation of John Yoo et al. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."
Article II of the Constitution of the United States of America makes the President "Commander in Chief of the Army and Navy of the United States," and also mandates that he "shall take Care that the Laws be faithfully executed", where "the Laws" refer to federal statutes passed by Congress. Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The president is an officer of the government of the
One court has said that the President's Commander-in-Chief authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts. It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in Hamdi v. Rumsfeld, ruling that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens."
The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on January 5, 2006 regarding the NSA electronic surveillance of communications, titled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" and concluding that
From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the
Shall "Democrat" control of the U.S. Congress lead to a meaningful rolling back of the Bush Administration's assault on domestic privacy?