The University of Chicago Law School Faculty Blog: Presidential Wiretapping: Disaggregating the Issues

The University of Chicago Law School Faculty Blog: Presidential Wiretapping: Disaggregating the Issues: "Presidential Wiretapping: Disaggregating the Issues

The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

I have already suggested that it is plausible to give a 'yes' answer to (1), certainly if we do not consider the effect of FISA. "