The Spying was illegal
Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument -- if, I think in the end, an unpersuasive one -- that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.The constitutional argument is tricky. I happen to think the 4th amendment case is trickier than he does, and that the FISA case is clearer, but he is pretty dismissive of the "inherent constitutional authority" argument and the argument that the authorization to use force in Afghanistan justifies this.
The result is what I've been saying, though he finds some squirrely exemptions that I think he overstates.
He seems to think that satellite transmission would be treated differently because the clause pertaining to them has a "reasonable expectation of privacy" exemption. But that applies to radio transmissions in general, and there are radio transmissions which are not intended to be private and not designed to be private (walkie-talkies, CB radios, etc.) which would fall within FISA. I think someone talking on a satellite phone has a reasonable expectation of privacy, even across international boundaries.
The "reasonable expectation" argument gets to part of his 4th amendment argument that I don't buy. He argues that radio transmissions (including satellite, microwave, and other similar communications) are subject to the border exemption, which is what lets customs search you on entry into the U.S. I don't buy it because searching your car doesn't interfere with your protected right to speech, while "searching" your phone calls does. The section of the Keith decision I quoted before explicitly mingles the 1st and 4th amendment in exactly this way, so I'm not just making things up here.
If you accept my reading, the technical fuzziness pertaining to FISA disappears, and what Bush admits he did is unambiguously illegal. If you accept Kerr's argument, what he did is most likely illegal, but we need more information to be certain. In either case, Bush violated the spirit of the law and probably of the Constitution, even if he managed to get some loopholes through the 4th amendment. The 4th amendment doesn't carry civil and criminal penalties, while FISA does.
For completeness, I grant that the national security exemption to the 4th is unresolved on the issues at hand. The Court has given a lot of leeway, but hasn't granted the President broad powers in the absence of a law. Litigation on that point stopped when FISA was enacted and that part of the law was no longer the Wild West.
The argument about the Afghanistan resolution is tricky because the text if the resolution is brief and the legal interpretation is not complete. The President is allowed to detain people caught on the battlefield, which is relatively obvious, but spying on American citizens is a rather different matter, especially since it's explicitly covered by domestic law, law amended after the resolution passed. Since no Senators seem to think they intended to authorize domestic espionage, I think we can rest there.
Kerr writes of the "inherent Constitutional authority argument:
While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.In an otherwise wishy-washy piece (reflecting Kerr's cautious approach, one I haven't chosen to exercise, and I don't criticize Kerr's choice), this is strong language. He sees no substance to that claim, and neither do I.
Bush broke the law, and needs to be held to account in a court, as does Alberto Gonzales, Harriet Miers and maybe John Ashcroft.