NSA Spying: Why Is There Confusion?

by Jim Kouri, CPP

The President possesses broad constitutional powers to take military
action in response to the terrorist attacks on the United States on
September 11, 2001. Congress has acknowledged this inherent executive power
in both the War Powers Resolution and the Joint Resolution passed by
Congress on September 14, 2001, immediately following Al-Qaeda attacks in
New York and Washington.


The President has constitutional power not only to retaliate against
any person, organization, or State suspected of involvement in terrorist
attacks on the United States, but also against foreign States suspected
of harboring or supporting such organizations.


The President may deploy military force preemptively against terrorist
organizations or the States that harbor or support them, whether or not
they can be linked to the specific terrorist incidents of September 11.


The resolution passed by congress on September 14, 2001 appears to
clearly define Commander-in-Chief's powers to wage war against terrorists.
Part of any military action is the gathering of intelligence including
intelligence obtained through electronic intercepts.


Here is the exact language of the September 14 resolution:


"To authorize the use of United States Armed Forces against those
responsible for the recent attacks launched against the United States.


"Whereas, on September 11, 2001, acts of treacherous violence were
committed against the United States and its citizens;


"and Whereas, such acts render it both necessary and appropriate that
the United States exercise its rights to self-defense and to protect
United States citizens both at home and abroad;


"and Whereas, in light of the threat to the national security and
foreign policy of the United States posed by these grave acts of violence;


"and Whereas, such acts continue to pose an unusual and extraordinary
threat to the national security and foreign policy of the United States;


"and Whereas, the President has authority under the Constitution to
take action to deter and prevent acts of international terrorism against
the United States:


"Now, therefore, be it Resolved by the Senate and House of
Representatives of the United States of America in Congress assembled."


The Federal Intelligence Surveillance Act (FISA) understandably is a
vital part of intelligence gathering and law enforcement. It provides
mandatory provisions to insure the legality of the surveillance in order
to avoid the tainting of evidence gathered for a criminal prosecution.


However, in a time of war, the end users of the electronic surveillance
intercepts are not the prosecutors and the courts but the US forces
deployed to combat terrorism. Besides branches of the US Armed Services,
such forces may include agents with the Central Intelligence Agency, the
Federal Bureau of Investigation, the Department of Homeland Security,
the National Security Agency, and members of Joint Terrorism Task Forces
who represent federal, state and local law enforcement agencies and
departments.


If one looks at the term "war on terrorism" as simply symbolic and
comparable to the "war on poverty" or the "war on drugs," then one would
have an argument that NSA surveillance operation require FISA warrants.
Those labeling the NSA spying as Illegal, are those who tend to view
terrorism as a criminal justice problem. They want suspected terrorists to
have constitutional protections such as access to attorneys, Fifth
Amendment protections against self-incrimination, and the like.


Those who view the "war on terrorism" as a war -- which is stipulated
in the congressional resolution of September 14, 2001 -- believe enemy
combatants are not entitled to constitutional protections. Once an
American citizen consorts with the enemy in this war -- terrorists and
nations that harbor and support terrorism through financing and materials --
he or she should be designated an "enemy combatant."