42 Case W. Res. J. Int'l L. 647 (2009-2010)
Unlimited Power: They the President's (Warrantless) Surveillance Program is Unconstitutional; Ku, Raymond Shih Ray

handle is hein.journals/cwrint42 and id is 681 raw text is: UNLIMITED POWER: WHY THE PRESIDENT'S (WARRANTLESS)
SURVEILLANCE PROGRAM IS UNCONSTITUTIONAL
Raymond Shih Ray Ku*
In this essay, Professor Ku explores the constitutionality of the President's
Surveillance Program (PSP), and critiques the Bush Administration 's legal
explanations supporting warrantless surveillance. Defenders of the pro-
gram have relied upon the President's inherent executive authority, the
Congressional Authorization for Use of Military Force, the FISA Amend-
ment Act of 2008, and ultimately that under any of these sources of authori-
ty the warrantless surveillance authorized is consistent with the right of
privacy protected Fourth Amendment to the U.S. Constitution. As such, Pro-
fessor Ku uses the PSP to illustrate the how and why current constitutional
analysis both ignores and subverts the right of the people to be secure
guaranteed by the Constitution.
I. INTRODUCTION
The Fourth Amendment protects power not privacy.' I wrote
those words in the days following the terrorist attacks of 9/11, troubled that
events would test this nation's commitment to the principle that ours is a
government of laws and not of men, and.., we submit ourselves to rulers
only if under rules.2 Fourth Amendment jurisprudence was especially
problematic not only because it is implicated whenever the government
seeks to investigate wrongdoing, but also because even before we declared
war against terrorism, the Supreme Court's reasonable expectation of pri-
vacy approach undermined the fundamental concerns and principles that
prompted the Amendment's adoption. At best, the Justices lost the Constitu-
tional forest for the doctrinal trees. At worst, they fundamentally shifted the
political authority over questions of public and individual security from the
*  Professor of Law, Co-Director, Center for Law, Technology & the Arts, Case Western
Reserve University School of Law. I would like to thank my colleague Robert Strassfeld for
inviting me to participate in this symposium as well as the editors of JIL for the hard work
and assistance in preparing this essay for publication. This essay draws heavily from my
prior work, The Founders' Privacy: The Fourth Amendment and the Power of Technological
Surveillance, 86 MINN. L. REv. 1325 (2002).
1  Raymond Shih Ray Ku, The Founders' Privacy: The Fourth Amendment and the Power
of Technological Surveillance, 86 MIN. L. REV. 1325 (2002).
2  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., con-
curring).

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