by Geoffrey R. Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago is the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton 2004) and a member of the ACS Board of Directors.What is at stake in the legislation, signed into law last weekend by President Bush, amending the Foreign Intelligence Surveillance Act of 1978 (FISA)? To answer this question, it’s necessary to review how we came to this point.
The Fourth Amendment generally forbids the government to engage in wiretaps or other forms of electronic surveillance of private communications without a prior judicial determination that there is probable cause to believe that unlawful conduct is afoot.
In 1972, in the
Keith case, the Supreme Court unanimously held that even in national security investigations the president cannot constitutionally conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.
In 1978, Congress enacted FISA, which established special rules dealing with foreign intelligence surveillance. FISA set up a special “secret” court, the Foreign Intelligence Surveillance Court, to handle these matters, but retained the probable cause and warrant requirements. FISA criminalizes any electronic surveillance not authorized by statute and made clear that it set forth the exclusive means by which foreign intelligence surveillance may lawfully be conducted.
In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. When the existence of this program came to light in 2005, critics charged that it violated FISA and/or the Fourth Amendment.
The President and his defenders responded that the NSA program was lawful because (a) Congress had implicitly empowered the President to ignore FISA when it authorized the use of military force after 9/11, and/or (b) FISA is unconstitutional insofar as it limits the President’s inherent constitutional authority to act in the nation’s best interests in his role as “commander in chief” of the armed forces.
Both of these arguments have been dismissed as groundless by most constitutional scholars, a federal court rejected both arguments and held the President’s secret surveillance program unlawful and unconstitutional, and last January the President agreed to have the program overseen by the FISA court, although it was unclear precisely what that court was to do with program.
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That Republicans in Congress supported this legislation is unfortunate. That some Democrats supported it, and thus made its passage possible, is nothing short of disgraceful. Just as they were stampeded by trumped up hysteria into authorizing the invasion of Iraq, once again they have been stampeded into granting the President a power he should never have been granted.
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