ABSTRACT
In 2001, the President began spying on Americans again, under circumstances that recalled abuses disclosed almost 30 years earlier by the Church Committee.1
The 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.
