EDITORS: Five legal experts at Indiana University Bloomington agree that the National Security Agency's anti-terrorism electronic surveillance program approved by President George W. Bush probably does not violate the Fourth Amendment. However, the program violates the Foreign Intelligence Surveillance Act, and several of the experts believe that neither the Authorization to Use Military Force passed by Congress after 9/11 nor the president's inherent constitutional authority provides sufficient legal grounds to justify the statutory violation. Contact information for each faculty member is provided within the individual commentary below.
Dawn Johnsen, professor of law, Ira C. Batman Faculty Fellow, and former acting assistant attorney general for the Office of Legal Counsel: "Nothing that the Bush administration has told Americans justifies its practice of spying on them without a warrant and in direct violation of a federal law. The president is not above the law, and that law already allows him to obtain warrants in secret and with relative ease when doing so would advance national security. If President Bush needs greater authority for domestic surveillance, he should make his case to Congress and the American people and not simply disobey the law in secret. The president greatly undermines the rule of law if he acts contrary to a federal statute without publicly announcing he is doing so, and we have to rely on leaks to learn about it."
Fred H. Cate, Distinguished Professor of Law and director of the Center for Applied Cybersecurity Research: "The Foreign Intelligence Surveillance Act provides for a five-year jail term for anyone who conducts domestic surveillance without a warrant while claiming to be acting under 'color of law.' That is precisely the claim the president is making -- that his warrantless surveillance was carried out under color of law. So will a future administration prosecute him or his subordinates?"
David Fidler, professor of law and Harry T. Ice Faculty Fellow: "To avoid criminal sanctions under the Foreign Intelligence Surveillance Act and a constitutional battle with Congress over presidential powers, the Bush administration needs to cloak its NSA surveillance activities in the Authorization to Use Military Force adopted by Congress. But here the imperial presidency has no clothes, because this authorization does not provide the president with the power to ignore clear and detailed statutory law on the collection of foreign intelligence in the United States."
Patrick Baude, Ralph F. Fuchs Professor of Law and Public Service: "So far as the president's constitutional powers may be involved, there are no directly controlling precedents from the United States Supreme Court. The courts have, however, refused to issue any president a 'blank check' to ignore the law by invoking his own judgment of the requirements of national security."
Joseph Hoffmann, Harry Pratter Professor of Law and a former clerk for William H. Rehnquist: "As long as the surveillance program is reasonably designed to meet the government's special needs in fighting terrorism and is reasonably implemented, the fact that the NSA is acting without warrants or probable cause probably does not create any serious Fourth Amendment problems. If the program is held invalid, it will be because of some other legal issue, not because of the Fourth Amendment."
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