“the NSA activities are lawful and consistent with civil liberties.”
“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th in order to prevent “any future acts of international terrorism against the United States.”
“The Supreme Courtï¿½s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the Presidentï¿½s use of all traditional and accepted incidents of force in this current military conflictï¿½including warrantless electronic surveillance to intercept enemy communications both at home and abroad.”
“The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United Statesï¿½the Foreign Intelligence Surveillance Act (”FISA”)”
FISA “prohibit[s] any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute“.
In fact, the report concludes that FISA might even be unconstitutional as applied in this situation:
Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda.
Indeed, were FISA and Title III interpreted to impede the Presidentï¿½s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt.
In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.
Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of communications described by the President falls within a well-established exception to the warrant requirement and satisfies the Fourth Amendmentï¿½s fundamental requirement of reasonableness. The NSA activities are thus constitutionally permissible and fully protective of civil liberties.
I think the DOJ hits on a very important element of this whole program. It is not designed to snoop on political rivals or those who simply disagree with the administration’s policies… it is designed to “prevent further catastrophic attacks” by “a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States“. An enemy who fully understands our freedoms (such freedoms they themselves do not afford others) and seeks to exploit them as a military strategy.
But does such a program really protect us? Let’s not forget that wiretaps and eavesdropping on terror suspects netted Italy a handful of al-Qaeda operatives plotting “to conduct a series of major attacks inside the U.S.” that would “exceed the devastation caused by 9/11.”
I’d say yes.