Arlen Spectors suggestion that the debate be had in the Judiciary committee could conceivably draw as much attention as the Alito hearings. With the Presidents arguments on very shakey legal ground it may be possible to use the consequence of censure if more information is not forthcoming to open the question of how extensive this data mining surveillance is to public scrutiny.

The President and his Attorney General argue he is inherently Commander in Chief. According to the Constitution the president becomes Commander in Chief when called to Service in that role by Congress in time of War.

What the President has done is ursurp the role of Congress in Declaring war by defining a war on terror as a political slogan and then confuse the semantic difference between what a President does in defining a political policy and what a Congress does in Declaring a war.

Next, the President has confused the semantic difference between the unitary executive notion of being in sole control of the Defense Department and a department of the Executive branch, and thus its commander in chief and the role of the president under article II of the Constitution of being Commander in Chief when called to service.

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;

As to the unitary executive powers....

The President

may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,

That part of the argument which is based on the powers of the unitary executive doesn't hold water

The legality of warrantless surveillance overseas is not an issue.

According to the FISA Act of 1978 surveillance may be allowed when a warrant has been issued by a FISA judge or for up to 72 hours prior to obtaining one.

In the United States warrantless surveillance is illegal under the IVth amendment to the constitution.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is an impeachable offense and a felony to break this law and there is no statue of limitations.

Both the NSA and the President have claimed not to be conducting warrantless surveillance inside the United states, and to be doing so under the executive authority of the President and the Attorney General.

The Attorney General and Michael Hayden of the NSA claim to have Presidential authorization to engage in warrantless surveillance such as data mining of emails or packet sniffing of international banking and financial transactions which may involve money laundering, and to draw upon the covert surveillance of other government agencies to keep an eye on the activity of people who may be suspected of being protestors or demonstrators likely to protest or demonstrate against or disrupt critical defense industries such as Halliburton.

The President can't authorize others to do what he has no power to do himself.

ACLU
The American Civil Liberties Union and the Center for Constitutional Rights filed lawsuits on Tuesday against the Bush Administration for conducting wiretaps of American citizens without judicial oversight.

The ACLU filed its lawsuit against the federal agency tasked with conducting surveillance, the National Security Agency (NSA), on behalf of three authors, two Islamic scholars, and three nonprofit groups that believe they have been or could be targeted by the wiretapping orders. The Center for Constitutional Rights (CCR) filed its lawsuit on behalf of its staff, who fit the criteria of those that could be the focus of investigations, the group said in a statement.

The lawsuits add to the controversy surrounding the Bush Administration's contention that the United States is at war and that status gives the president the right to void legal and constitutional protections for U.S. citizens. President Bush secretly authorized the NSA to eavesdrop on Americans and others inside the United States without obtaining warrants from secretive courts designed by the Foreign Intelligence Surveillance Act (FISA) to oversee such activities. The NSA has also reportedly widely monitored Internet communications in some situations without significant oversight.

In addition to questions regarding the privacy of U.S. citizens, details of the program also raise issues about whether the U.S government has the right to tap data that merely passes through the country. Media reports from earlier this year suggested that the NSA was being positioned to be the nation's traffic cop.

Foreign Intelligence Surveillance Court developments
On December 20, 2005, Judge James Robertson, one of the 11 members of the Foreign Intelligence Surveillance Court, created by the 1978 FISA, sent Chief Justice John Roberts a resignation letter from the FISC. The letter gave no reason for Robertson's decision to resign. U.S. District Judge Dee Benson of Utah, also of the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly", according to a report. He and fellow judges on the court attended a secret briefing in January, called by presiding Judge Colleen Kollar-Kotelly. Since only she and her predecessor had been secretly briefed on the program, the rest of the court had presumably been learning about the Bush Administration's warrantless surveillance policy through press accounts. (Judge Kollar-Kotelly had begun lobbying the administation for a briefing disclosing the administration's position on their authority to conduct warrantless wiretapping after Judge Robertson's resignation.) [1] Reportedly, the court was also concerned about "whether the administration had misled their court about its sources of information on possible terrorism suspects . . . [as this] could taint the integrity of the court's work." [2]

Commentators have raised the issue of whether, regardless how one feels about the authorization issue, FISA is adequate to deal with current technology and technical methods of intelligence gathering. For example, see "Fixing Surveillance [3] and "Why We Listen." [4]

Legal challenges
On January 17, 2006, the ACLU [5] and the Center for Constitutional Rights filed separate lawsuits, ACLU v. NSA and Center for Constitutional Rights v. Bush, challenging the legality of the warrantless spying program, with a range of plaintiffs such as defense lawyers, journalists, scholars, political activists, and organizations, including Christopher Hitchens, Larry Diamond, and Greenpeace, who communicate with or travel extensively to Middle Eastern nations. [6]

ACLU
The ACLU suit was filed in the United States District Court for the Eastern District of Michigan challenging the constitutionality of the "secret government program to intercept vast quantities of international telephone and Internet communications of innocent Americans without court approval". [7] The complaint alleges violations of the Separation of Powers and the First and Fourth Amendments. The plaintiffs seek an injunction. Because of the nature of the program, the plaintiffs do not allege any specific instance of harm, but that because of the nature of the plaintiffs' work they have a "well-founded belief that their communications are being intercepted". Among the co-plaintiffs is Larry Diamond who was an advisor to Iraq's Coalition Provisional Authority. In a statement, Larry Diamond states that the NSA program which intercepts communications will have a chilling effect on communications to and from the Middle East. [8]

CCR
The Center for Constitutional Rights (CCR) suit was filed in the Federal District Court for the Southern District of New York. [9] CCR said, "Given that the government has accused many of CCR's overseas clients of being associated with Al Qaeda or of interest to the 9/11 investigation, there is little question that these attorneys have been subject to the NSA Surveillance Program. The Center filed today's lawsuit in order to protect CCR attorneys' right to represent their clients free of unlawful and unchecked surveillance." [10]

EPIC
The Electronic Privacy Information Center (EPIC) also filed a lawsuit over the warrantless domestic spying program, two days after the lawsuits filed by the ACLU and the CCR. [11] sued under the Freedom of Information Act to force the government to divulge information about the spying program. [12]

EPIC has obtained the first Freedom of Information Act documents released by the National Security Agency on its controversial surveillance program. The documents, which are internal messages (pdf) from the agency's director to staff, defend the NSA's warrantless eavesdropping and discourage employees from discussing the issue with the news media. (Jan. 4) [13]

Ali al-Timimi
Jonathan Turley, who is representing Ali al-Timimi (convicted of soliciting others to levy war against the United States), persuaded the Fourth Circuit Court of Appeals to halt appellate proceedings January 24, 2006. The appellate court is considering whether to send the case back to the trial court to discover if NSA warrantless surveillance was used to monitor Ali. If it does, Turley said, "the government would have to establish whether Dr. Al-Timimi was intercepted under this or any other undisclosed operation, and the court could have to look at the legality of the whole operation." [14]

Legal issues
There are a number of legal issues surrounding the surveillance without warrants controversy. Some have suggested that President Bush, in authorizing such surveillance, is in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) and the Constitution. President Bush has claimed authority to approve the NSA program under the September 18, 2001 Congressional Authorization for the Use of Military Force and under his inherent powers under Article II of the Constitution.

Legality of warrantless surveillance
The debate surrounding President Bush's authorization of warrantless surveillance stems from the fact that under the constitution and under FISA its illegal.

The Attorney General, depending on an untested Unitary Executive theory set well apart from the Unitary Executive doctrine that has been used by other presidents such as Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, Harry Truman, Richard Nixon, Ronald Reagan and William Clinton, argues that the authority of the executive branch derives from the Constitution and statutory authority to protect the nation from attack

.

Its a bit inconsistent to argue that as a unitary executive the president has unitary control of the executive branch and the defense department within it and the ability to act as commander in chief of the forces of the defense department in time of war and to delare it a time of war, and at the same time needs the authorization of Congress to use force, and is obligated to comply with the restrictions imposed by the FISA Act of 1978, so for purposes of consistency the President is no longer arguing as he did in April of 2004 that the FISA Act requires him to get a warrant.

Departmental Theory says the United States Constitution is a different type of law than ordinary law. Unlike ordinary law which is used by the government to control the people, Constitutional Law is used by the people to control the government.

Under Departmental Theory the Separation of Powers is both expected and intended to be constantly tested by each branch constantly doing everything it can to extend its power at the expense of the other branches. It is expected that there will be consequences ranging from success to impeachment and that the difficulty will either be worked out by agreement between the branches, or revert to the ultimate authority of the people.

The legal community is fascinated by the issues involved, especially the issue of whether warrantless surveillance can be justified by necessity, because if that argument holds away we no longer will be a nation of laws.

Though the President is in a position of controlling all three branches of government, the constitution, requires him to both faithfully execute the laws and preserve, protect and defend the constitution.

The legal community is split over whether the President can successfully argue neither the constitution, nor the law apply to him when he finds it necessary to ignore the law in order to sucsessfully preserve protect and defend the nation.

Now that the full details of the NSA surveillance operation are known and it has now been revealed by the government that the surveillance includes data mining of American citizens entirely in the United States many people are concerned.

Its very troubling to some Americans that people are targeted for reasons of ideology. Political views that it might be suspected would offer aid and comfort to the enemy by opposing the president and showing a lack of solidarity in time of war are now considered reasonable grounds for surveillance.

Democrats, Liberals, people blogging on the Daily KOS, Quakers, anti war demonstrators, Halliburton protestors, have been wire taped, had their emails and blogs subject to review, been covertly surveilled, and arrested.

It is argued that this is necessitated by a post 9/11 mentality and a war where the enemy may be an individual living in the United States. It is further argued that the FISA laws written in 1978, which require warrants that comply with the constitution which was written centuries ago, simply are obsoleted by the exigencies of this modern struggle.

The consensus is now that of Harold Koh, dean of Yale Law School, and Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, who argue that FISA clearly makes the wiretapping let alone the data mining illegal[43];

Those who like John Schmidt, former Associate Attorney General, [44] and Douglas Kmiec, chair of Pepperdine Law School, argued either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war are generally conceeded to be wrong. see "Other legal analysis" below.

Those such as K.A. Taipale of the World Policy Institute and James Jay Carafano of the Heritage Foundation [45] and Philip Bobbitt of the University of Texas Law School [46],who have suggested that, regardless of how one feels about this important Constitutional power issue, FISA itself is no longer adequate to deal with certain technology developments, particularly the transition from circuit-based communications to packet-based communications and needs to be amended may have a better case, but the problem is that the ilegal actions were taken before any such ammemdment was ever proposed.

The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. 50 U.S.C. §1802(a)(1). [47] In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers, not U.S. persons. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillence whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. [48] [49] These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Article II of the Constitution of the United States of America makes the President Commander in Chief when selected by Congress with the responsibility to protect the Nation when Congress has made a Declaration of War. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts.

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct. Furthermore, professor Orin Kerr argues that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding dicta and that the argument does not restrict Congress's power to regulate the executive in general.[50]

The President and his Attorney General argue that even assuming the President has no authority under Article II of the Constitution, the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for the Use of Military Force (AUMF). Section 2(a) of the AUMF authorized the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks."

The important point about this is that a force authorization is like a warrant, a limited authorization to use force agains the persons places or things named, in this case only those who planned, authorized, committed or aided the [9/11] terrorist attacks.

Under FISA, this provides for two basic legal arguments. First, FISA allows for both physical searches and electronic surveillance without a court order for fifteen days after a declaration of war by Congress. 50 U.S.C. §1811. Several cases, including Hamdi v. Rumsfeld and Rumsfeld v. Padilla, have construed the AUMF as a declaration of war-at least, insofar as it authorizes war against Al Qaeda and its agentsâ€"although the language it uses also has notable differences with prior declarations of war. In this case, 50 U.S.C. §1811 may permit some level of surveillance. The meaning of 50 U.S.C. §1811 is somewhat ambiguous as to scope of authority permitted under this section. One argument is that it permits the President to authorize, for a period of fifteen days following the declaration, indefinite surveillance of Al Qaeda and its agents, but the repeated reauthorization of the surveillance by the President suggests this argument is not being used by the White House. Another interpretation is that it permits short term surveillance of fifteen days authorized at any point after the declaration of war.

The AUMF may also relieve the administration of any criminal or civil liability under 50 U.S.C. §§ 1809 and 1810. These two provisions, and their corresponding provisions for physical searches, provide that intentional surveillance without authority is a felony "except as authorized by statute." The argument, in this case, is that "all necessary force" includes "foreign surveillance." In Hamdi and Padilla, the Supreme Court found that the detention of both American and Foreign citizens were "clearly and unmistakably" a "fundamental incident of waging war". Intelligence gathering, some argue, would fall under this same rubric of incidents of war. As such, if the AUMF is understood as a "statutory" authority under FISA, neither the criminal nor civil penalities would apply, at the very least, to those individuals targeted by the AUMF. However, former Senate majority leader Tom Daschle, who negotiated the language of the AUMF, explained that "the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate." [51]

Finally, there may be significant legal problems should information gathered under President Bush's authorization be used in criminal trials. Ordinarily, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness. Courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement."

In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution. In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President. Other cases have allowed the use at criminal trial of evidence obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether it is reasonable to use evidence gained from broad warrantless surveillance, which may more broadly cover the communications of US persons. The National Security Act of 1947[52] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

Other legal analysis
The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed memo on January 5, 2006 regarding the NSA electronic surveillance of communications, concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations" and that the Administrations reliance on executive power was not "well-grounded." [15] [16] Furthermore, it is evident the interpretation that has been advanced (by most notably John Yoo) is more broad than originally intended. More to the point: "the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution." [17]
The Congressional Research Service released another report on January 18, 2006, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". The report argued that it was an intelligence collection, rather than a covert action program, and as such the Bush administration's refusal to brief any members of Congress on the warrantless domestic spying program other than the so-called Gang of Eight congressional leaders is "inconsistent with the law." [18]
Professor Peter Swire, the C. William Oâ€TMNeill Professor of Law at the Ohio State University and Visiting Senior Fellow at the Center for American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal."[19] Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age.
Fourteen of the nation's top constitutional scholars, from across the political spectrum, sent a legal brief to the 535 members of Congress in which they concluded that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law."[20] [21] The fourteen authors are:
Curtis Bradley, law professor, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office
David Cole, law professor, Georgetown University Law Center
Walter Dellinger, law professor, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General
Ronald Dworkin, law professor, NYU Law School
Richard Epstein, law professor, University of Chicago Law School, Senior Fellow, Hoover Institution
Philip B. Heymann, law professor, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, law professor and Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ
Martin Lederman, law professor, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel
William S. Sessions, former Director of the FBI under Presidents Reagan and Bush I, former Chief United States District Judge
Geoffrey Stone, law professor and former Provost, University of Chicago
Kathleen Sullivan, law professor and former Dean, Stanford Law School
Laurence H. Tribe, law professor, Harvard Law School
William Van Alstyne, law professor, William & Mary Law School, former Justice Department attorney under President Eisenhower
Robert Reinstein, dean of the law school at Temple University, has asserted that the warrantless domestic spying program is "a pretty straightforward case where the president is acting illegally... When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that... This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this." Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times
Edward Lazarus, law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple".[22]
Jonathan Turley, a law professor at George Washington University and a specialist in surveillance, speaking about Bush's admission that he authorized warrantless wiretaps, was quoted on December 20, 2005 by Knight Ridder writer Ron Hutcheson, "The presidentâ€TMs dead wrong. Itâ€TMs not a close question. Federal law is clear. When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors."[23] Turley had testified against Clinton, according to an December 22, 2005 interview in Salon. "Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism. I'm surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle."[24]

On January 16, 2006, former Vice President Al Gore gave a major speech critical of the administration, said "At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently." Washington Post
John W. Dean wrote a column published Dec. 30th in Findlaw stating: "There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable." Mr. Dean went on to say, "These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration..." "Indeed, here, Bush may have outdone Nixon..."
In comparing the wiretapping policies adopted by the Bush Administration, Mr. Dean commented: "No president before Bush has taken as aggressive a posture -- the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position."

Commenting on Professor John Woo's legal arguments justifying the Bush Administration policy, Mr. Dean remarked that he found "Professor Yoo's legal thinking bordering on fantasy." In support of his conclusion, he referenced the recent review of The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11 by John Yoo in the New York Review of Books (Volume 52, Number 18 · November 17, 2005) by Georgetown University School of Law professor David Cole.
In his review, "What Bush Wants to Hear", Professor Cole commented that "Yoo was so influential in the Bush administration..." because his arguments were exactly what "the president would have wanted to hear." Professor Cole writes: "Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by lawâ€"constitutional or international."

According to a report in The Boston Globe on February 2, 2006 three law professors, David Cole (Georgetown University), Richard Epstein (University of Chicago), and Philip Heymann (Harvard), said that what Bush is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001 ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former duputy US attorney general said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . . . statute." [32]