the Government’s interest in engaging in the NSA activities is the most compelling interest possible – securing the Nation from foreign attack….The Government’s overwhelming interest in detecting and thwarting further al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy involved in [the NSA surveillance program].This argument is what's known as a straw man. The question isn't whether the NSA program is useful or successful, but whether it's legal and constitutional. And such decisions aren't made on the basis of short-term utility. In his concurrence to Youngstown Sheet and Tube Co. v. Sawyer (the Steel Seizure case), Justice Jackson wrote that “the tendency is strong to emphasize transient results upon policies...and lose sight of enduring consequences upon the balanced structure of our Republic” and that “no doctrine that the Court could promulgate would seem more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”
Determining the rightness or wrongness of the NSA surveillance program goes far beyond the efficacy of the program. Any honest analysis must consider the implications of giving the president effectively unlimited and unchecked powers to fight the war on terror.
[I will be presenting a paper on this very issue -- presidential-congressional war powers and the constitutionality of the NSA surveillance program -- at a conference at Chapman University School of Law entitled "Are We at War? Global Conflict & Insecurity Post-9/11." If anyone is interested in seeing this paper, please let me know. Also, the conference will be web-cast live on April 6-7. My panel on Separation of Powers and Presidential Authority is on Friday, April 7 at 1:45 - 3:15 PM.]
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