Does Article II authorize warrantless NSA spying?
I’ve been following with interest the comment-discussions on recent posts on Unclaimed Territory, Glenn Greenwald’s blog. In particular, the argument that the President’s powers under Article II of the Constitution authorize him to spy domestically on suspected enemy agents has more first-glance plausibility than I had originally assumed. As a refresher, this argument goes like this: • Article II of the Constitution says “The President shall be commander in chief of the Army and Navy of the United States”. His authority to direct the military when it is engaged in a Congressionally-approved confrontation is “plenary”, that is, unreviewable by other branches of Government. • We are at “war” with Al Quaeda • It is an obvious and natural incident of war to surveil the enemy • FISA forbids domestic wiretapping without a warrant • The President ordered domestic wiretapping without a warrant of suspected Al Quaeda members • However, this is not illegal because the President’s constitutional
