Terrorist Surveillance and the Constitution
May 22, 2007Andrew C. McCarthy, David B. Rivkin, Jr., Lee A. Casey
The Federalist Society for Law and Public Policy Studies is pleased to make a contribution to the current debate about the scope of the President's powers in wartime by publishing this monograph on the legal and constitutional issues implicated by NSA's global al Qaeda surveillance program. Although this surveillance program is important in its own right, the ongoing dialogue about its proper legal and policy parameters has become a surrogate for a broader discourse about the wartime constitutional balance among the Executive, Congress and the Judiciary. This issue has stimulated a heated debate, with the bulk of the academy and the media arguing that the President's actions violated both the 1978 Foreign Intelligence Surveillance Act and the Constitution. This viewpoint was vigorously presented in an ABA Resolution, dated February 13, 2006, and in the Letter of Scholars to Congress, dated January 9, 2006. Both of these products have been extensively referenced in congressional hearings on the subject, which commenced several weeks ago and are still ongoing. By contrast, the accompanying study by Andrew C. McCarthy, David B. Rivkin, Jr., and Lee A. Casey posits that the NSA's al Qaeda surveillance program does not run afoul of FISA and is fully within the ambit of the President's authority as the Commander-in-Chief. The ABA Resolution, Scholars' Letter, and McCarthy-Rivkin-Casey study are reproduced herein.