John C. Yoo, The Legality of the National Security Agency's Bulk Data Surveillance Programs, 10 ISJLP 301 (2014)
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.1 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.
Legal questions over surveillance arise from the unconventional nature of the war against al Qaeda. On September 11, 2001, the al Qaeda terrorist network launched attacks on New York City and Washington, D.C. from territory in Afghanistan substantially under its control. Under normal circumstances, American military and intelligence officers, acting pursuant to the President's Commanderin- Chief authority, would carry out electronic surveillance against a foreign enemy in wartime. Al Qaeda, however, operates through teams of covert agents who disguise their communications and movements within normal peaceful activities. American law subjects domestic criminal enterprises, which operate in similar ways, to the more elaborate system of search warrants, individualized suspicion, and judicial supervision required by the Fourth Amendment. Controversy over the legality of the NSA's programs basically centers on whether surveillance of al Qaeda should follow the wartime/foreign intelligence model or the criminal justice approach.
This paper will address the legality of the NSA's programs in this light. Part I will describe the surveillance efforts against al Qaeda within a broader historical and legal context. Part II will argue that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III will address whether the NSA programs are constitutional along two dimensions. First, it will argue that even if some aspect of the NSA programs does not fall within Congress's authorization for foreign intelligence and counterterrorism 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 will argue, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.