The ACLU contends that the NSA wiretapping program does not adhere to the provisions of the Federal Intelligence Surveillance Act (FISA) of 1978 or the Fourth Amendment of the Constitution. FISA limits physical searches and electronic surveillance to the gathering of foreign intelligence information. It also defines foreign intelligence information as "information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism."

Another major Congressional act at the heart of this controversy is the Authorization of Use of Military Force (AUMF), passed in 2001 in response to the 9/11 attacks. This legislation authorizes the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The administration maintains that AUMF enables the president to exercise those powers "incident to the waging of war," including the collection of enemy intelligence, in spite of FISA provisions.

Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, and Senator Ted Kennedy (D-MA) introduced Senate Resolution 350, which states, "Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."

Congressional debate aside, U.S. District Court Judge of Detroit Anna Diggs Taylor ruled on August 17, 2006, that the Bush administration’s NSA wiretapping program is a violation of both FISA and the Fourth Amendment. The NSA has appealed the case.

As one of the main constitutional issues involved in this case is the right to privacy, I would suspect that one of the major court cases that will be discussed in the future of ACLU v. NSA is Griswold v. Connecticut (1965), in which the Supreme Court ruled that the "statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights." This decision also paved the way for Roe v. Wade, which recognized that women’s privacy includes the right to determine whether or not their own pregnancy should be carried to full term. Another case that will probably be discussed is Katz v. United States (1967). The case held that the government must obtain a warrant before domestic wiretapping can be engaged, as the government recording of private conversations constitutes a "search" as defined by the 4th Amendment. All of these Supreme Court decisions have recognized the general right to privacy of American citizens, a key issue in the NSA case.

Harold Koh, Dean of Yale Law School, and Suzanne Spaulding, former General Counsel for the Intelligence Committees of the House and Senate, both argue that wiretapping is illegal under FISA. On the opposite side of the spectrum is Professor John Eastman, Director of the Claremont Institute Center for Constitutional Jurisprudence at the Chapman University School of Law. In a letter to the chairman of the House Judiciary Committee, he argued that "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war."

Given the widespread controversy of this case, there are likely to be multiple amicus curiae (friend of the Court) briefs filed on behalf of both parties if the case proceeds to the U.S. Supreme Court. Most likely, the American Bar Association (ABA) will file such a brief on behalf of the ACLU. The ABA opposes the wiretapping program because it feels the program violates FISA; it has said that it will oppose any future government wiretapping programs in the United States for foreign intelligence purposes that do not obtain warrants from a special secret court as required by the 1978 Foreign Intelligence Surveillance Act.

Another proponent of the ACLU’s position in this case is David D. Cole, Professor of Law at Georgetown University. Cole has argued that the wiretapping program is unprecedented. He stated, according to the Boston Globe, that Bush’s claim that other presidents asserted that wartime powers supersede an act of Congress "is either intentionally misleading or downright false." Another academic with similar sentiments is Richard Epstein, Professor of Law at the University of Chicago, who was quoted in the Globe as saying, "I find every bit of this (pro-wiretapping) legal argument disingenuous...The president’s position is essentially that Congress is not doing the right thing, so I’m going to act on my own."

On July 6th, 2007, the 6th Circuit Court of Appeals ruled two-to-one in favor of the NSA. According to the Court, the ACLU plaintiffs did not suffer any Fourth Amendment violations. However, the ruling does not address the constitutional legalities of the wiretapping program itself. This case will likely be appealed to the Supreme Court, as there is technically no precedent set for the case and any ruling will have a significant impact on the future of privacy in America. ● BC