Unlimited power: why the President's (warrantless) surveillance program is unconstitutional.

• Author: Ku, Raymond Shih Ray
• Position: Somebody's Watching Me: Surveillance and Privacy in an Age of National Insecurity

In this essay, Professor Ku explores the constitutionality of the President's Surveillance Program (PSP), and critiques the Bush Administration's legal explanations supporting warrantless surveillance. Defenders of the program have relied upon the President's inherent executive authority, the Congressional Authorization for Use of Military Force, the FISA Amendment Act of 2008, and ultimately that under any of these sources of authority the warrantless surveillance authorized is consistent with the right of privacy protected Fourth Amendment to the U.S. Constitution. As such, Professor Ku uses the PSP to illustrate the how and why current constitutional analysis both ignores and subverts "the right of the people to be secure" guaranteed by the Constitution.

1. INTRODUCTION

   "The Fourth Amendment protects power not privacy." (1) I wrote those words in the days following the terrorist attacks of 9/11, troubled that events would test this nation's commitment to the principle that "ours is a government of laws and not of men, and ... we submit ourselves to rulers only if under rules." (2) Fourth Amendment jurisprudence was especially problematic not only because it is implicated whenever the government seeks to investigate wrongdoing, but also because even before we declared war against terrorism, the Supreme Court's "reasonable expectation of privacy" approach undermined the fundamental concerns and principles that prompted the Amendment's adoption. At best, the Justices lost the Constitutional forest for the doctrinal trees. At worst, they fundamentally shifted the political authority over questions of public and individual security from the people in both their constitutional and legislative capacity to the judiciary and executive, the two branches of government the framers specifically sought to restrain. Unfortunately, actions taken as part of the war on terror only confirmed my fears and exacerbated these constitutional problems.

   In 2005, the New York Times reported that the National Security Agency (NSA) was engaged in secret surveillance activities within the U.S. (3) Subsequently, the President and his administration confirmed and defended what has been dubbed the President's Surveillance Program (PSP). (4) Understandably, President Bush justified this surveillance as a valuable tool in the war on terror. "The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time." (5) For the purposes of this discussion, this essay does not question either the need for or the effectiveness of this program. Instead, it questions the process of its adoption and implementation. While the full extent of the PSP is still unknown, what we do know about the program, and the steps that the Bush Administration and Congress took in response to the public disclosure of its existence, place the failings of our current constitutional jurisprudence into stark relief.

   As I have written, the Fourth Amendment cannot be viewed in isolation but must be seen as a complement to other constitutional protections including the doctrine of separation of powers. The Fourth Amendment and the definition of executive power in our constitutional separation of powers protect the public from arbitrary and unlimited executive power. The need for this interpretation becomes clear when we recognize that decisions made to investigate dangerous and criminal activity are more than simply discretionary decisions about when to investigate or search a particular individual at a micro level, but are also macro-level decisions determining the scope of executive power and, correspondingly, the amount of privacy, security, and political authority that the public enjoys and exercises. Accordingly, I argued that the Fourth Amendment requires that searches conducted with new surveillance technologies must be treated as searches subject to Fourth Amendment restraints. Technologically assisted searches must either comply with the Warrant Clause or be authorized by a statute containing safeguards constitutionally equivalent to the protections afforded by the Warrant Clause. Only then are the people the supreme political authority, not their representatives.

   Not only do the PSP and the actions taken by the President and Congress to authorize the PSP fail to satisfy these requirements, but also this program presents a problem I only alluded to in a hypothetical: "Could Congress... satisfy the Fourth Amendment requirement of reasonableness by simply passing a law authorizing law enforcement to adopt and use any technology it chooses?" (6) In other words, would it be consistent with the Constitution for Congress to essentially issue the President a blank check to engage in surveillance? At the time, I wrote:

   Assuming that a legislature would pass such a statute, a highly dubious proposition, the answer must be no. While such a statute might satisfy the doctrine of separation of powers, it does nothing to address the concerns embodied in the Fourth Amendment. Such a statute does nothing to limit police discretion at either the macro or micro level. While legislatures may delegate broad discretionary powers to the executive branch in other areas of constitutional law, the Fourth Amendment would appear to limit such a delegation with respect to searches and seizures. (7) This essay explains and elaborates upon this argument in light of the PSP and FISA Amendment Act of 2008 (FAA) demonstrating why a jurisprudence focused upon privacy fails to recognize and even obscures the vital constitutional interests at stake.

   Part II of this essay briefly describes the PSP, the arguments that have been made, and the steps taken to defend the constitutionality of the program. While there are multiple sources of information on this topic, this essay draws primarily from the unclassified report on the PSP prepared by the Office of the Inspectors General. Drawing heavily on my earlier work on the subject, parts III and IV outline the arguments I have made regarding surveillance under our Constitution and why the reasonable expectation of privacy test ultimately undermines what should be more appropriately considered the right of the people to be secure. In Part V, this essay argues that the PSP perfectly illustrates the problems created by the Supreme Court's approach towards government surveillance and why, even after Congressional authorization, the constitutional legitimacy of the PSP is still doubtful. In short, what matters most is not some substantive right of privacy, the invasions of which we deem to be unreasonable, but the process by which the three branches of government investigate and prosecute dangerous individuals.

2. THE PRESIDENT'S SURVEILLANCE PROGRAM

   In the weeks following the terrorist attacks of September 11, 2001, the President authorized the NSA to engage in new and highly classified surveillance activities including the warrantless interception of "communications into and out of the United States where there was a reasonable basis to conclude that one part to the communication was a member of al-Qa'ida or related terrorist organizations." (8) This portion of the PSP was often referred to as the Terrorist Surveillance Program. Under that same Presidential Authorization, Other Intelligence Activities were also initiated, but the details of the authorization and those activities remain classified. (9) However, it has been alleged that with the cooperation of some of the nation's telecommunications providers, the NSA began monitoring domestic telephone and Internet communications on an unprecedented scale. (10)

   Initially, even when limited to the Terrorist Surveillance Program, the PSP appeared to violate the Foreign Intelligence Surveillance Act (FISA), (11) which was enacted to "provide legislative authorization and regulation for all electronic surveillance conducted within the United States for foreign intelligence purposes." (12) Specifically, the PSP allowed the NSA to conduct electronic surveillance within the U.S. without a court order while FISA only authorized such surveillance pursuant to an order from the Foreign Intelligence Surveillance Court (FISC). FISA's requirement of an FISC order was intended to ensure that certain factual conditions and legal standards were satisfied, thus justifying the surveillance.

   Despite this conflict, the Bush Administration sought to justify the PSP on two grounds. First, it relied upon a threat assessment memorandum prepared by the Central Intelligence Agency (CIA). (13) As its description would indicate, this memorandum documented the intelligence agency's assessment of terrorist threats to the U.S. from al-Qaeda and other terrorist organizations and, therefore, supported the desirability for such a program. Second, the Bush Administration relied upon legal memoranda prepared by Deputy Assistant Attorney General John Yoo in the Department of Justice Office of Legal Counsel (OLC) to justify the legality of the program. (14)

   According to the OIG report, in a November 2, 2001 memorandum:

   Yoo acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "[s]uch a reading of FISA would be an unconstitutional infringement of the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. (15) With regard to the Fourth Amendment:

   Yoo dismissed Fourth Amendment concerns regarding the PSP to the extent that the Authorizations applied to non-U.S...