[HT to ThinkProgress.]
Robert Levy, a Senior Fellow of Constitutional Studies at the Cato Institute and Board Member of the conservative Federalist Society, has expressed grave concerns over the legal standing of Bush's warrantless NSA program [warning: .pdf file].
Levy said of Bush's program in a recent Q&A session:
[W]arrantless wiretapping of Americans inside the United States who may have nothing to do with al Qaeda does not qualify as an incidental wartime authority. The president's war powers are broad, but not 'plenary' as your question implies.
More in extended.
To be sure, FISA's prohibition on unauthorized electronic surveillance applies "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." §1801(f). Surely, US citizens and permanent resident aliens have a reasonable expectation of privacy in their international phone calls and e-mails.
Accordingly, warrants would be required for law enforcement purposes and, therefore, warrantless surveillance absent an authorizing statute would violate the FISA requirement.
I know of no court case that has denied there is a reasonable expectation of privacy by US citizens and permanent resident aliens in the types of wire communications that are reportedly monitored by the NSA's electronic surveillance program. Perhaps there are some international satellite or radio that do not come under FISA's prohibitions because the correspondents could not reasonably expect privacy. But the President has made no such showing to Congress, the courts, or the public.
Levy later:
[T]he president does have inherent powers, which stem from the Commander-in-Chief Clause of Article II, and the courts have so ruled.
The dispute, then, is over the extent of that unilaterial executive authority. And the key Supreme Court opinion that establishes a framework for resolving that dispute is Justice Jackson's concurrence in
Youngstown Sheet & Tube v. Sawyer -- the 1952 case denying President Truman's authority to seize the steel mills. Trauman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act, Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was most recently adopted by the US Court of Appeals for the Second Circuit in holding that the administration could no longer imprison Jose Padilla: First, when the president acts pursuant to an express or implied authorization from Congress, "his authority is at its maximum." Second, when the president acts in the absence of either a congressional grant or denial of authority,
"there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution it is uncertain." But third, where the president takes measures incompatible with the express or implied will of the Congress--such as the NSA program, which violates an express provision of the FISA statute--"his power is at its lowest."
...
In my view, he has overreached.
Time and again, we hear wingnut pundits minimizing the seriousness of the president's NSA program. But in legal circles from the liberal side to the conservative, there is no such belief. Warrantless surveillance at a minimum raises serious legal questions. At a maximum, constitutes an impeachable offense. We would all be wise to pay greater attention to those with a legal background rather than know-it-all hacks like Bill Kristol and Fred Barnes.