Presidential Authority to Gather Foreign Intelligence (original) (raw)
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The Constitutionality of the NSA Surveillance Program: A Letter to the House Judiciary Committee
SSRN Electronic Journal, 2006
I appreciate your committee's interest in my views as a constitutional law scholar regarding the legality of the President's authority to conduct surveillance of communications between suspected al Qaeda operatives/supporters abroad and individuals, including citizens, residing in the United States. I specialize in the principles of the American founding and how those principles were given effect through the structural provisions of the Constitution. The current controversy over the President's surveillance program, like the controversies over the Boland Amendment in the 1980s, the War Powers Act in the 1970s, and countless other statutory efforts by Congress to limit the President's executive powers, force us to give serious consideration to the Founder's constitutional design. In particular, I think it is important to assess the strength of the competing arguments that have been brought to the Committee's attention by the Congressional Research Service ("C RS") 1 and the Department of Justice ("DOJ") 2 with respect to whether the President's actions "violated" the Foreign Intelligence Surveillance Act ("FISA") 3 and, if so, whether the FISA, so interpreted, would be an unconstitutional intrusion upon powers tha t the Constitution confers directly upon the President.
Indiana Law Journal, 1974
2. Most of the evidentiary record in New York Times Co. v. United States, 403 U.S. 713 (1971), is comprised of secret testimony and submissions. The record remains secret 3. In United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), for example, where the Government was seeking to enjoin an ex-CIA agent from publishing a book, clearances were required for the lawyers and expert witnesses. 4. The Government comes close to suggesting this in its brief in United States v.
FOREWORD: THE NSA AND THE LEGAL REGIME FOR FOREIGN INTELLIGENCE SURVEILLANCE
I/S: A Journal of Law and Policy for the Information Society, 2014
This paper introduces a symposium, published in Volume 10, Issue 2 of I/S: A Journal of Law and Policy for the Information Society, entitled, "NSA Surveillance: Security, Privacy, and Civil Liberty," which is available at http://moritzlaw.osu.edu/students/groups/is/volume-102/. The paper traces the history of electronic surveillance law by way of explaining how our laws have evolved to a stage where lawyers could plausibly defend the government’s entitlement to capture and store an immense volume of our telephone and online communications, as well as metadata about both. It goes on to introduce the other papers in the symposium and concludes by arguing the importance of executive branch acquiescence in such statutory limits as Congress may impose on national security surveillance as it affects Americans. Keywords: NSA, FBI, surveillance, warrantless surveillance, foreign intelligence, fourth amendment
The Constitution & National Security: Covert Action In The Age of Intelligence Oversight
Journal of Law And Politics, 1989
The various initiatives undertaken by the Reagan Administration in what has come to be known as the Iran-Contra affair have reignited an old struggle for control over foreign policy.' While the circumstances of this particular controversy are somewhat unusual, the strife between Congress and the Executive has endured, within certain boundaries, since the inception of the Republic. The contours of this debate are well known to anyone with a passing knowledge of the Constitution. Indeed, their familiarity risks obscuring the important principles which are at stake. Yet the sight of a rear admiral and a lieutenant colonel claiming exemption from the law and from political accountability in pursuit of national security goals" helped focus attention on the fundamental constitutional values implicit in the recent political furor. These values are nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the rule of law. The assertion by President Reagan and his associates of remarkable executive prerogatives in the area of national security requires us to reconsider who, under the Constitution, is entitled to participate in the creation and implementation of foreign policy and how the distribution of this power between the branches of government preserves the delicate balance between secrecy and democracy.
FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security
In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA. Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA. First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.” The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.” This Article examines the Court of Review’s decision and argues that the court reached an err...
2020
National security intelligence collection is defined by secrecy and covert data collection. Methods of data collection and processing have developed rapidly along with advances in technology and data encryption. Activities undertaken by national security intelligence organizations such as the CIA and NSA serve to thwart potential threats to the US, warn allies of disruptive international developments, and predict the proximate reality of the international balance of power (both between states and non-state entities). In the US there is an ongoing debate, largely induced by the Edward Snowden NSA leaks of 2013, around the constitutionality of data collection and processing on behalf of both national security intelligence organizations and domestic law enforcement. Gaps in legislative, executive, and judicial oversight regarding the constitutionality of intelligence collection arose post-9/11, when reforms led to the expansion of illiberal and undemocratic intelligence collection in the name of national security. In this paper, I contextualize the debate surrounding the balance between national security and the civil right to privacy in the US, justify reforms based on Fourth Amendment principles, and ask what gaps should be addressed and reformed in the current system of US national security intelligence oversight. Proposed reforms are based on past decisions of the European Court of Human Rights (ECtHR) and the European Court of Justice (EUCJ) on the effectiveness of quasi-judicial (i.e. hybrid) systems of oversight involving both legislative and judicial entities.
Executive Privilege: The Bush Record and Legacy
American Review of Politics, 2008
President George W. Bush has adopted an expansive view of presidential powers that has had a profound impact on the nation’s governing system. In the area of government secrecy Bush has used executive privilege to withhold information from Congress, the courts, and the public under the guise of protecting the deliberative process. This article describes and analyzes the major executive privilege controversies during President Bush’s administration. It looks also at a number of lesser battles and threats of executive privilege and provides an overall assessment of the Bush presidency and its implications for future presidents.
What NSA Is Doing... and Why It's Illegal
Hastings Const. LQ, 2005
What NSA Is Doing. .. and Why It's Illegal by JOHN CARY SIMS * This article will provide a more detailed description than has previously been available of exactly what it is that NSA is doing. Once the nature of the program is more clearly understood, the conclusion that it violates the law as it stands is unavoidable. 4 I. Title III, Keith, and FISA The Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.