Secret law is not law. It is a fundamental breach of the social contract .

[Romulus Quirinus]

54. Here is an article in from Dr. Anthony Clark Arend of Georgetown University

who argues against this interpretation:

http://blogs.georgetown.edu/?id=12001

So, does the case law indicate that the President would have the Constitutional authority to conduct such warrantless surveillance?

Lower court decisions seem to suggest that the answer is in the affirmative. But there are several very important caveats:

First, the Supreme Court still has not ruled on the question.

Second, Truong related to surveillance that took place before FISA was adopted, even though the case was decided after FISA went into effect.

Third, while the Foreign Intelligence Surveillance Court of Review indicated that it took "for granted" that the President has the authority to conduct such searches, that statement seems to be dicta and not part of the actual holding of the case.

Finally, even assuming for argument's sake that the President does have the authority under certain circumstances to conduct warrantless surveillance in response to a threat posed by a foreign power or the agent of a foreign power, such surveillance would still need to meet the "reasonableness requirement" of the Fourth Amendment. Given that FISA establishes a fast and secret procedure that the Executive Branch can use to obtain court orders to conduct surveillance against foreign powers and their agents, and given that FISA even allows for retroactive approval of surveillance if time were truly of the essence, would it be "reasonable" for the President to act outside that framework? The reasonableness question is especially critical in the present controversy because this action does not seem to be a one-time surveillance that needed to be undertaken at a moment's notice, but rather a long program that required numerous re-authorizations.

This seems to jibe with my layman's understanding of the situation.