by Jim Kouri, CPP
U.S. District Judge Anna Diggs Taylor ruled this week that the
communications intercept program conducted by the National Security Agency is
unconstitutional. While many are shocked or feigning shock over her
decision, this writer wasn't shocked or surprised at this judicial ruling.
The moment I read in her decision the term "warrentless wiretaps" I
knew Judge Taylor's decision was more political than constitutional. These
were not wiretaps. They were intercepts of communications between
suspected terrorists overseas and people residing in the United States.
Diggs, sitting in federal court in Detroit, ruled Thursday that the
NSA's Terrorist Surveillance Program should be halted immediately. She
said plaintiffs from the legal, academic and journalism field had proven
that the program was harmful to them and violated the US Constitution.
One of the major plaintiffs in the case was none other than the American
Civil Liberties Union, and they did an excellent job of "judge
They found the perfect judge to hear the case: A President Jimmy Carter
appointee with a history of activism on the bench. An admitted liberal
Democrat, Judge Taylor's court decisions include the banning of
Nativity scenes from municipal property.
She was once blasted by Judge Bernard Friedman her for her role in an
effort to have a suit challenging the University of Michigan's use of
race in its law school's admission policies assigned to another judge who
was handling a similar case. Taylor's husband is on the board of
regents for that school. Her attempt was politically motivated since Friedman
was considered more conservative than the other judges.
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 "illegal combatant."
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.
For more than a quarter-century, the FISA court had been seen as the
only body that could legally authorize secret surveillance of espionage
and terrorism suspects. But there are many legal scholars who believe
the Bush Administration acted properly and that, unlike the Clinton NSA
spy program code named "Echelon," the spying had limited focus on
terrorism and was part of a war strategy.
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
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.
And they are the ones who want suspected terrorists to have
constitutional protections such as access to attorneys, Fifth Amendment
protections against self-incrimination, and the like.
Jim Kouri, CPP is currently fifth vice-president of the National
Association of Chiefs of Police and he's a staff writer for the New Media
Alliance (thenma.org). He's former chief at a New York City housing
project in Washington Heights nicknamed "Crack City" by reporters covering
the drug war in the 1980s. In addition, he served as director of public
safety at a New Jersey university and director of security for several
major organizations. He's also served on the National Drug Task Force
trained police and security officers throughout the country. Kouri
writes for many police and security magazines including Chief of Police,
Police Times, The Narc Officer and others. He's a news writer for
TheConservativeVoice.Com. He's also a columnist for AmericanDaily.Com,
MensNewsDaily.Com, MichNews.Com, and he's syndicated by AXcessNews.Com.
He's appeared as on-air commentator for over 100 TV and radio news and
talk shows including Oprah, McLaughlin Report, CNN Headline News, MTV,
News, etc. His book Assume The Position is available at Amazon.Com.
Kouri's own website is located at http://jimkouri.us
The Captain's Quarters has more:
The Taylor Embarrassment: