Does NSA warrantless surveillance violate the Fourth Amendments protection against unreasonable searches?
(2) Does the program violate the Foreign Intelligence Surveillance Act [FISA]? (3) Does the AUMF authorize warrantless surveillance by the NSA? (4) Do the president’s inherent powers allow him to ignore FISA? (5) What should be done if the executive branch has acted unlawfully? My conclusions, as elaborated in the following sections, are: First, the president has some latitude under the “executive Power” and “Commander-in-Chief” Clauses of Article II, even lacking explicit congressional approval, to authorize NSA warrantless surveillance without violating the “reasonableness” requirement of the Fourth Amendment. But second, if Congress has expressly prohibited such surveillance (as it has under FISA), then the statute binds the president unless there are grounds to conclude that the statute does not apply. Third, in the case at hand, there are no grounds for such a conclusion — that is, neither the AUMF nor the president’s inherent powers trump the express prohibition in the FISA stat
