domesticsurveillance.pdf (application/pdf Object)

domesticsurveillance.pdf (application/pdf Object)

Q1. Rivkin: Why can't the President's use of warrantless surveillance in this instance be justified under the Foreign Intelligence Surveillance Act (FISA), especially since FISA requires a "reasonable expectation of privacy" to exist before a FISA warrant is required?

Levy: The text of FISA §1809 is unambiguous: “A person is guilty of an offense if he intentionally engages in electronic surveillance … except as authorized by statute.” That provision covers communications from or to U.S. citizens or permanent resident aliens in the United States. Moreover, Title III (the Wiretap Act) further provides that “procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance … may be conducted.”

To be sure, FISA’s prohibition on unauthorized electronic surveillance applies “under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” §1801(f). Surely, U.S. citizens and permanent resident aliens have a reasonable expectation of privacy in their international phone calls and emails. Accordingly, warrants would be required for law enforcement purposes and, therefore, warrantless surveillance absent an authorizing statute would violate the FISA requirement.

I know of no court case that has denied there is a reasonable expectation privacy by U.S. citizens and permanent resident aliens in the types communications that are reportedly monitored by the NSA’s electronic surveillance program. Perhaps there are some international satellite communications that do not come under FISA’s prohibition because correspondents could not reasonably expect privacy. But the president made no such showing to Congress, the courts, or the public. ...
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Q5. Levy: President Bush, much like President Truman when he attempted to seize the steel mills, is asserting a power to act in a manner explicitly forbidden by Congress. Under those circumstances, said Justice Jackson in his Youngstown Sheet & Tube v. Sawyer concurrence, presidential “power is at its lowest.” To uphold the president’s NSA program would thus require finding that either (a) Congress has no authority at all to regulate domestic wiretaps of Americans, or (b) Article II’s Commander-in-Chief Clause makes Congress’s enactment in this area inoperative. Do you support either or both of those notions? ...