FISA SECTION 702: AN UNCONSTITUTIONAL
INFRINGEMENT OF EXECUTIVE POWER
II. RECOGNITION OF BROAD EXECUTIVE POWER IN WIRETAPPING FOR FOREIGN INTELLIGENCE PURPOSES
As technology advanced during the twentieth century, presidents of both parties authorized warrantless surveillance on national security grounds both at home and abroad—and there was a general consensus that this was a proper exercise of the president’s “executive Power” over foreign intercourse.45 Indeed, when the Supreme Court held in 1967 that wiretaps of telephone conversations raised Fourth Amendment concerns in Katz, it expressly excluded national security wiretaps from its holding in a footnote.46 Five years later, Justice Powell repeatedly emphasized, in footnotes to the Keith case, that the Court’s holding did not limit warrantless wiretapping authorized by the President for foreign intelligence purposes.47 While one might assume that if the Justices believed that warrantless foreign intelligence wiretaps authorized by the President were clearly constitutional they would have said so, that conflicts with the longstanding principle that the Court is not supposed to give “advisory” opinions—and thus is not to resolve constitutional issues not actually at issue in the pending case.
The theory that the grant of “executive Power” to the President in Article II, Section 1, of the Constitution empowered the President to authorize warrantless wiretaps for foreign intelligence purposes was widely
embraced at the district and circuit court level both before and after Keith. In cases like United States v. Butenko,48 United States v. Brown,49 United States v. Clay,50 and United States v. Truong,51 appellate courts agreed that the President has independent constitutional power to authorize warrantless electronic surveillance for foreign intelligence purposes.
For example, during the Carter Administration, Attorney General Griffin Bell authorized the warrantless wiretapping of telephones and the placement of microphones in the home and office of Truong Dinh Hung—a Vietnamese national who had lived in the United States for more than a decade. As the Fourth Circuit explained, the Carter Administration Justice Department relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement:
[T]he [Carter Administration] did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs. ...
The district court accepted the government’s argument that there exists a foreign intelligence exception to the warrant requirement. ...
We agree with the district court. ...52Despite Justice Powell’s repeated distinction in Keith between national security investigations involving purely domestic threats (which require a warrant), and those involving foreign powers and their agents in this country—and the consistent holdings of lower federal courts that the President has independent constitutional power to authorize warrantless surveillance where foreign powers were involved—the Congress in its wisdom passed a Foreign Intelligence Surveillance Act.
When Congress enacted FISA in 1978, it established not only a FISA Court (FISC), but also an appellate court known as the FISA Court of Review. In a unanimous 2002 opinion, the Court of Review declared:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.53And that is the central thesis of this Article.