An article from the symposium issue of the Indiana Law Journal on War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. The symposium was convened by the American Constitution Society for Law and Policy and the Indiana University School of Law–Bloomington on October 7, 2005.

As the title suggests, the authors undertake the effort of framing the legal debate on the NSA’s domestic surveillance program, also providing, as they say, “four documents that, taken together, set forth the basic arguments concerning the lawfulness of the secret NSA surveillance program. The debate outlined by the four documents raises important issues about statutory interpretation in the face of claims of constitutional conflict, executive power during times of war, fundamental privacy rights of Americans, and ultimately, the rule of law in the war on terror.” They conclude: “The question that these documents raise is not whether suspected al Qaeda members’ phone calls should be monitored, but whether wiretapping of Americans in pursuit of that objective should be done pursuant to law, or pursuant to secret orders issued by the President in contravention of law. Our view is that if the President finds federal law inadequate in some measure, the proper course is to ask Congress to change it. What the President cannot do in our democracy is order that the law be violated in secret.”