Does the presidents inherent power as commander-in-chief during wartime override the provisions of FISA?
No. The president has made the rather remarkable claim that the Authorization to Use Military Force (passed shortly after 9/11 and aimed at al-Qaeda) allows him to override FISA and authorize domestic surveillance on his own authority. But just as its name implies, a fair reading of the AUMF suggests that it was meant to apply only to military force. In fact, the Supreme Court only barely agreed that it extended even to the detention of enemy combatants, a fairly standard wartime power. Legalizing domestic surveillance of U.S. persons simply wasn’t the intent of Congress when it passed the AUMF, and this is precisely why they spent so much time amending FISA to apply to terrorism investigations after passing the AUMF. After all, why bother codifying all this if the AUMF already gave the president plenary powers in this area? Likewise, the proposition that Congress has no power to interfere in any way with the president’s Article II commander-in-chief power is ludicrous. There’s no case
