This article argues that President Bush’s domestic electronic surveillance program is unconstitutional. The program allows the President to order the NSA to conduct surveillance of electronic communications, including communications involving United States citizens, without court order. The authors conclude that the President lacked the statutory or constitutional power to authorize such a program and that the program runs afoul to the letter and the spirit of the constitutional protection against unreasonable searches and seizures embraced by the Fourth Amendment of the United States Constitution. Congress and the President share overlapping constitutional authority in matters of foreign affairs and national security. Congress neither expressly nor impliedly authorized the President to pursue the electronic surveillance program in question; indeed, the program is contrary to an express Congressional mandate. A scheme of government conduct that immediately and personally affects potentially all United States citizens, like the President’s domestic electronic surveillance program, ought to have been expressly approved by Congress before it is deemed constitutionally valid.
Lawrence Friedman & Renée M. Landers, Domestic Surveillance and the Constitution, 24 J. Marshall J. Computer & Info. L. 177 (2006)