When classified details were leaked to the press at some point in 2005, critics began to
question the legality of the program. The crux of the debate over legality is twofold, the main issues being
- Are the parameters of this program subject to FISA and
- If so, did the president have authority, inherent or otherwise, to bypass FISA.
FISA explicitly covers "electronic surveillance for foreign intelligence information" performed within the United States, and there is no court decision supporting the theory that the president's constitutional authority allows him to override statutory law. This was emphasized by fourteen constitutional law scholars, including the dean of
Yale Law School and the former deans of
Stanford Law School and the
University of Chicago Law School:
"The argument that conduct undertaken by the commander in chief that has some relevance to 'engaging the enemy' is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent.
Every time the Supreme Court has confronted a statute limiting the commander in chief’s authority, it has upheld the statute. No precedent holds that the president, when acting as commander in chief, is free to disregard an Act of Congress, much less a
criminal statute enacted by Congress, that was designed specifically to restrain the president as such." (Emphasis in original.)
[32] The
American Bar Association, the
Congressional Research Service, former congressional representative of New York
Elizabeth Holtzman, former White House Counsel
John Dean, and lawyer/author
Jennifer van Bergen have also criticized the administration's justification for conducting electronic surveillance within the U.S. without first obtaining warrants as contrary to current U.S. law.
[29] [33] [34] [35] [36] [37] President Bush's former Assistant Deputy Attorney General for national security issues,
David Kris, and five former
FISC judges, one of whom resigned in protest, have also voiced their doubts as to the legality of a program bypassing FISA
[38] Stanford's
Chip Pitts has usefully distinguished between the core NSA eavesdropping program, the data mining program, and the use of National Security Letters to clarify that each continues to present serious legal problems despite the government's supposedly bringing them within the relevant laws.
[39]