Editor’s Note: Kathryn R.L. Rand is Floyd B. Sperry Professor of Law and Associate Dean for Academic Affairs, UND School of Law and teaches a constitutional law series. Steven Andrew Light is associate professor of political science and public administration at the UND School of Business and Public Administration; American constitutional law is among the courses that he teaches.

Q. President George Bush headed into his State of Union address with a hefty, and in some quarters increasingly unpopular, antiterrorist agenda. Civil libertarians and other civil rights and legal experts, in particular, are worried about the President’s call for the unfettered use of the ultra-secret National Security Agency (NSA) and other spymasters to eavesdrop without warrants on American citizens both here and abroad.

By what authority can the White House grant the NSA the power to eavesdrop, without a warrant, on Americans? What control can Congress exercise over NSA?

Steven: The NSA program authorized by the Bush administration allows the agency to intercept international telephone and Internet communications by American citizens and legal residents without court approval.  Although in many ways the argument that “the whole world changed” on September 11, 2001, continues to hold sway among politicians and the public (sometimes, perhaps, rightfully so), it is important not to sweep away the various contexts in which a current debate over domestic surveillance should take place.

Kathryn: The president's power is at its greatest when he acts with the authorization of Congress and is at its weakest when he acts in contravention to Congress's direction. 

The president still has constitutional authority to act without Congress's approval, but he must rely on his exclusive powers, rather than those powers that are shared with Congress.  President Bush has claimed that Congress implicitly authorized the NSA domestic spying program through, at least in part, the 1978 Foreign Intelligence Surveillance Act (FISA).

Although the FISA requires court warrants for wiretaps (it allows for warrantless wartime domestic electronic surveillance, but only during the first 15 days of a war), the Bush administration has suggested that the safeguards of the NSA program are not dissimilar to those of the FISA and are justified by today's "different world," including Congress's authorization of the use of "all necessary and appropriate force against" al-Qaeda in the 2001 Authorization for Use of Military Force (AUMF).

Steve: Presidents consistently have sought to expand the sphere of executive authority, particularly during crisis or wartime. 

President Lincoln decided to blockade southern ports and imposed military commissions over the civilian court system during the Civil War. President Franklin Delano Roosevelt, by executive order, imposed curfews and ordered the “evacuation” and internment of tens of thousands of Japanese Americans during World War II.

The current President Bush, by several executive orders, designated people suspected of aiding and abetting terrorism as “enemy combatants,” approved the use of military tribunals, and approved the NSA’s domestic eavesdropping program. These are just a few examples. Presidents have justified their actions on the grounds of constitutional or statutory grants of authority as well as the argument that their actions were taken “by necessity” to protect the American people.

Kathryn: Some constitutional scholars, on the other hand, have argued that the FISA expressly prohibits the NSA domestic spying program, requiring the president to resort to his exclusive constitutional powers to defend the program -- and it is fairly clear that the president does not have exclusive power to regulate electronic surveillance within the U.S.

Q. What does this mean in legal terms as far as regular citizens are concerned?

Steven: The Fourth Amendment states that warrants authorizing search or seizure may not be obtained without probable cause.  In the 1960s, the U.S. Supreme Court recognized that this requirement embraces an individual right to privacy that includes protections against government eavesdropping through electronic surveillance.  The federal National Security Act of 1947 banned domestic operations by the intelligence community. 

Yet when Congress enacted FISA in 1978, it did so in response to revelations of the federal government’s widespread domestic surveillance programs of perceived dissidents during the political crucible forged by the Civil Rights Movement and Vietnam. 

FISA also could be read as a response to the Supreme Court’s expansion of constitutional protections under Chief Justice Earl Warren and the politically motivated “law and order” movement symbolized by the Omnibus Crime Control and Safe Streets Act of 1968 and advanced by the Nixon administration. 

FISA recognized that even threats to domestic security did not allow abrogation of the Fourth Amendment’s fundamental protection against warrantless surveillance. 

FISA provides that electronic surveillance must by “authorized by statute” and created a Foreign Intelligence Surveillance Court to determine whether surveillance is merited and to award a warrant.  FISA is one of three federal statutes that allow domestic electronic surveillance, two of which have to do with criminal wiretaps.

Kathryn: The constitutionality of the NSA program, in all likelihood, turns on whether Congress has authorized the program implicitly through the FISA and the AUMF. This issue likely will be resolved in the courts; at least two complaints have been filed by the ACLU and the Center for Constitutional Rights in federal court.

Q. Is there any precedent in U.S. law that might be used to limit the NSA's domestic electronic spying?

Steve: The constitutional rights arguably implicated here—the First Amendment’s right of free speech and the Fourth Amendment ’s right against surveillance (“search and seizure” of communications) without a lawfully obtained warrant—are bedrock. 

They may be read alongside another fundamental constitutional principle: the separation of powers that was intended to prevent any one branch of the federal government from gaining too much power over the others.  In a time of crisis or its aftermath, some folks tend not to think too critically about the long-term implications of increased government power -- both in terms of diminished individual rights and liberties and in terms of expanded and relatively unchecked executive authority. 

Some of the strongest supporters of domestic wiretapping are going to be the very same people who otherwise might argue that "that government which governs least, governs best."  This suggests that our internal ideological inconsistencies often are most apparent when we are faced with questions not just of the size and scope of government, but what its purpose should be. 

In this case, some would argue the purpose of the president’s authorization of the NSA’s domestic surveillance program is valid given the imperatives of protecting society from terrorist acts; this justifies the program and smoothes over the possible inconsistency between believing that the government should maximize individual freedoms and the government should engage in such intrusive measures. 

Others would say that executive power has been enlarged at the expense of individual rights and liberties, undermining the very values the president and NSA are charged with protecting and securing. 

Q. What's your view, in terms of the Constitution, regarding the unfettered use of NSA to spy on Americans at home?

Kathryn: Americans' opinions on domestic spying can show support for the NSA program, or can affect the likelihood that Congress might pass new authorizing legislation, but cannot expand the president's powers under the Constitution.  Even if a majority of Americans support the program, its constitutionality will still turn on interpretation of the FISA and AUMF, as well as the powers granted the president by the Constitution.

Steve: The transparency of government action is a necessity when it comes to holding public officials and institutions accountable to the people. 

The principle of popular sovereignty upon which this nation was founded rests on the fundamental premise that “we the people” should be able to chart the course for America’s future. 

One way we can do that is through access to good information about what our government is doing. 

Another expectation we might have is that our elected representatives in Congress will act as a check on executive authority.  A third vehicle for accountability is the judicial branch—our courts should prevent the government from trampling on individual rights and liberties. 

Through FISA, Congress authorized the NSA and other agencies to exercise a lot of power, and mostly in secret.  But the law is on the books, it establishes an outer perimeter for domestic surveillance, and it contains a warrant requirement.  Some measure of accountability at least remains a possibility if not a probability. 

Should the president be able to circumvent these measures through a series of secret executive orders about which both Congress and American people are intended to be unaware, and which removes the warrant requirement? 

And is it “good enough,” from a constitutional perspective, to suggest that the AUMF simply granted the president blanket authority to do so?

Kathryn: Domestic spying is a political issue as much as it is a legal issue.  Public opinion certainly has the power to affect government action. 

Recent polls reflect Americans' tolerance for warrantless electronic surveillance to fight terrorism, as well as their concerns that aggressive antiterrorism tactics infringe civil rights and civil liberties. 

A New York Times/CBS News poll found that over half of respondents supported eavesdropping without warrants "in order to reduce the threat of terrorism," but 70% did not support warrantless eavesdropping on "ordinary Americans." Nearly 2/3 of respondents were concerned about losing civil liberties as the result of the Bush administration's antiterrorism measures.

Q. It seems that part of this issue of domestic spying and right of the White House to OK warrantless spying turns on the definition of “suspected terrorist”; does this, or should this, make a difference?

Kathryn: The line between "suspected terrorists" and "ordinary Americans" is not an easy one to draw. 

The point of protecting the individual rights of all people, even when they are suspected of heinous crimes, is to ensure that government does not trample on the rights of "ordinary Americans" when they—perhaps unjustly—are accused of similar acts.  In the U.S., we safeguard constitutional rights through specific restrictions on government, rather than trusting government not to abuse its power. 

The danger always is that "ordinary Americans" may find themselves under suspicion and stripped of the civil liberties that they were willing to give up when they thought someone else was the target of the government's suspicion.