NSA Wiretaps – Inherent Constitutional Authority

When the New York Times broke the story about NSA wiretaps, one would have thought the world was coming to an end. Former Vice President Al Gore accused the president of “repeatedly and persistently” breaking the law. Gore also claimed that the decision to bypass the courts reflected an “indifference” to the Constitution. What the loser of the 2000 presidential election doesn’t say is that under the Clinton administration, warrant-less searches went beyond wiretaps and included the actual physical gathering of evidence. Gore’s accusations, in addition to being hypocritical, also reflect an astounding lack of understanding of Constitutional jurisprudence and separation of powers.

The President is the Commander-in-Chief of the armed forces of the United States (Article II, Section 2). As the Commander-in-Chief, the President is responsible to successfully prosecute wars that the U.S. is involved in. The United States is currently involved in a war, and the President is responsible for gathering signals intelligence on our enemies. The NSA wiretaps are designed to gather this intelligence, and are part of the President’s obligations under the Constitution.

Gore, and his ilk, claims that the President is breaking the law, however, our Constitutional jurisprudence says otherwise. The FISA Court of Review has stated “We take it for granted that the President does have that (warrant-less surveillance) authority.” The United States Supreme Court has held that a war can exist outside of a Congressional declaration (The Brig Amy Warwick, 67 US 635 (1863)), and that U.S. Citizens can be enemy combatants (Ex Parte Quirin, et al, 317 US 1 (1942)). In the circumstances at hand, the Commander-in-Chief is using his Constitutional authority to prosecute a war, in which U.S. citizens are engaging as enemy combatants.

FISA (the Foreign Intelligence Surveillance Act) and the Patriot Act cannot limit the President’s power as Commander-in-Chief, and to suggest that they can violates the separation of powers. These powers that the President is exercising are inherently his under the Constitution. According to the Supreme Court, Congress cannot modify by statute Constitutional provisions (Dickerson v. United States, 530 US 248 (2000). In order to change or limit Presidential authority under the Constitution, Congress would have to amend the Constitution, not pass a law.

President Bush is well within his authority to order the NSA to conduct surveillance of U.S. citizens that are communicating with Al Qaeda. As Alexander Hamilton wrote in Federalist 31, “A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care.”