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CRIMINAL LAW
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In October 2001, President George W. Bush authorized the National
Security Agency (“NSA”) “to intercept the international communications of
people with known links to al Qaida and related terrorist organizations.”1
Four years and two months later, news of the program became public.
Attorney General Alberto Gonzales defended the Commander-in-Chief’s
power to ignore warrants otherwise required under the Foreign Intelligence
Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets
Act.2 Congress itself had authorized the President to “use all necessary and
appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided” the 9/11 attacks.3 For
Gonzales, this meant that the President was acting “at the zenith of his
powers” under the tripartite framework set forth by Justice Jackson in
Youngstown v. Sawyer.4
This was not the first time Article II claims backed surveillance
programs designed to protect the United States from attack. In the midst of
the Cold War, the NSA ran Operations SHAMROCK and MINARET. The
Federal Bureau of Investigation (“FBI”) orchestrated COINTELPRO and
amassed over 500,000 dossiers on American citizens. The Central
Intelligence Agency (“CIA”) oversaw Operation CHAOS and built a
database that tracked 300,000 people. Routine counterintelligence
operations disrupted everything from women’s liberation to the civil rights
movement.