William and Mary Law School

Van Alstyne Joins Scholars in Letter About Domestic Spying Program

William & Mary Law Professor William W. Van Alstyne is among 14 legal scholars and former government officials who recently signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program.

The spying program, which authorizes the federal government to eavesdrop on international phone calls and emails of people deemed terror risks, has come under intense scrutiny in recent months. Just this week, two federal lawsuits were filed by national civil rights organizations that claim the program is illegal and that President George W. Bush has gone beyond his constitutional powers.

The Bush administration has argued that the program is legal under an anti-terrorism resolution passed by Congress following the attacks of Sept. 11, 2001. Critics say the program circumvents a 1978 law – the Foreign Intelligence Surveillance Act (FISA) -- that regulates and requires court approval for the use of the electronic monitoring.

Van Alstyne, the Lee Professor of Law at William and Mary Law School and one of the nation’s foremost constitutional law scholars, said his decision to sign the letter to Congress was not because of any antagonism toward President Bush, but “from a steadfast concern that limits expressly adopted by Congress in legislation governing the use of surreptitious eavesdropping and wire tapping must be respected.”

“At an earlier time, kings of England could ignore acts of Parliament and were, indeed, above the law. It was part of the very design of our Constitution that no one elected president would fancy himself to possess any similar prerogative,” Van Alstyne added. “So, now, the proposition is once again being tested. It is no small matter, and I would have felt professionally derelict not to join in a public statement that simply straightforwardly articulates why all who care about the integrity of our constitutional system and of the rule of law itself should do all they can to preserve it rather than have it subverted by instruments of executive stealth.”

In addition to Van Alstyne, the letter’s signers include, among others, a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter states that the Bush administration should have pursued a legislative amendment to FISA before moving forward with the spying program.

“One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law,” the letter concludes. “But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.”