Not surprisingly, the debate over whether the President’s “terrorist surveillance program” is legal or not has been bogged down by misconception and flat out deception on the part of opponents. While there are solid legal arguments on both sides of the program, a look at the Constitution as well as history renders opposition position false.
The core of the Bush administration’s support for this program stems from the President’s role as Commander in Chief under Article II, Section 2 of the Constitution. Throughout history this designation has included the President’s ability to gather battlefield intelligence during times of war. The founders saw the President’s role as so vital in this area that they stated that “these powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies” in Federalist 23. In this vein, a warrant is not required for all “searches and seizures,” an idea that was confirmed by the FISA court itself when it stated that the President has the “inherent authority to conduct warrantless searches to obtain foreign intelligence information,” which would include intercepting al Qaeda communications originating outside of the U.S. The court further underscored this, saying “nothing contained [in FISA or the criminal law] shall be deemed to affect acquisition by United States Government of foreign intelligence information from international or foreign communications."
Furthermore, the Authorization for Use of Military Force Joint Resolution of 2001 gave the President the power to “use all necessary and appropriate force…to prevent any future acts of international terrorism” within the United States, which certainly covers the need to gather intelligence concerning terrorist organizations. It is important to note that this Joint Resolution could only confirm the President’s Constitutional authority to conduct intelligence gathering; had Congress attempted to impinge upon this power, the effort would have been void, as Congressional statutes cannot supercede the Constitution.
If the FISA court exists to allow covert surveillance and has had a high approval rate throughout its use, why was it deemed inefficient for gathering War on Terror intelligence? FISA was created to allow controlled government surveillance at a time when public distrust of the executive branch was high, and thus the law was written in a restrictive manner. FISA’s high number of approvals for surveillance requests is misleading. This approval percentage relates to the high standards needed to even present an application, which includes the “facts and circumstances…to justify [the attorney general’s] belief that the target is an agent of a foreign power,” and sometimes take months to prepare. The stringent requirements for FISA requests and the fluid nature of terrorists prevented the FISA court from being an efficient intelligence vehicle for the War on Terror.
The War on Terror represents a unique challenge. American enemies do not operate as in the past, and the evolution of technology has made surveillance a complicated and ever changing matter. While there are statutes that appear to relate to the President’s abilities in this arena, they are irrelevant, as it is the Constitution that is the “supreme law of the land.” Both history and close Constitutional reading present a strong case supporting the terrorist surveillance program.
• 
• 
• 
• 
• 
• 
• 
