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93 Minn. L. Rev. 1 (2008-2009)
The Constitution in the National Surveillance State

handle is hein.journals/mnlr93 and id is 3 raw text is: Essay The Constitution in the National Surveillance State Jack M. Balkint Late in 2005, the New York Times reported that the Bush administration had ordered the National Security Agency (NSA) to eavesdrop on telephone conversations by persons in the United States in order to obtain information that might help combat terrorist attacks.1 The secret NSA program oper- ated outside of the restrictions on government surveillance im- posed by the 1978 Foreign Intelligence Surveillance Act (Fl- SA)2 and is thought to be only one of several such programs.3 In 2007, Congress temporarily amended FISA to increase the t Knight Professor of Constitutional Law and the First Amendment, Yale Law School. This essay was originally given as the William B. Lockhart Lecture at the University of Minnesota Law School on October 10, 2006. My thanks to Bruce Ackerman, Orin Kerr, Seth Kreimer, Sandy Levinson, Tracey Meares, and Tal Zarsky for comments on a previous draft, and to Leah Belsky for research assistance. Copyright © 2008 by Jack M. Balkin. 1. James Risen, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 15, 2007, at Al. See generally JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE CIA AND THE BUSH ADMINISTRATION 39-60 (2006). On January 17, 2007, Attorney General Gonzales wrote to Senators Pa- trick Leahy and Arlen Specter, respectively the Chairman and Ranking Mi- nority Member of the Senate Judiciary Committee, stating that the adminis- tration would conduct the Terrorist Surveillance Program under the approval of the Foreign Intelligence Surveillance Court using new complex and inno- vative court orders. Letter from Alberto R. Gonzales, Attorney Gen., to Pa- trick Leahy and Arlen Specter, Senators (Jan. 17, 2007), available at http:// www.talkingpointsmemo.com/docs/nsa-doj-surveillance/. 2. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 26 (1978) (codified as amended in scattered sections of 50 U.S.C.). 3. On the variety of NSA domestic surveillance programs, which blur the line between domestic and foreign intelligence, see Siobhan Gorman, NSA's Domestic Spying Grows As Agency Sweeps Up Data, WALL ST. J., Mar. 10, 2008, at Al (describing the NSA's monitoring of a wide range of personal data from credit card transactions and e-mail to Internet searches and travel records, as well as an ad-hoc collection of so-called 'black programs' whose ex- istence is undisclosed).