Why the NSA Program Is Constitutional

President Obama is apparently ready to recommend sweeping changes to the NSA’s surveillance programs in a speech to be given next week. As I’ve argued in earlier posts here and in a recent opinion piece at Fox News, this would be a mistake for his presidency and the office in general— presidents who seek to transfer important powers to other branches during wartime are inevitably failed presidents.

Obama’s panicky decision to make changes demonstrates a misunderstanding of the legal issues. Major changes would be necessary only if the program were violating constitutional rights. Contrary to popular perception, however, the programs are constitutional. The argument runs a little too long for me to do justice to it at Ricochet, so I wanted to share a short paper of mine that explains why the NSA programs are constitutional under existing law and the Fourth Amendment to the Constitution. You can find it here. Here’s the abstract, which gives you a sense of my approach:

Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

I’d be interested to hear thoughts from those of you who read through the paper.