September 22, 2014 – Even complete, comprehensive congressional reform will not end unconstitutional, warrantless NSA spying.
In the unlikely event that Congress actually took bold steps to place additional restrictions on data collection under the Foreign Intelligence Surveillance Act and sections of the Patriot Act, unwarranted spying would continue under “authority” of the executive branch. In fact, the Department of Justice interpretation of presidential authority under the Authorization to Use Military Force passed in the wake of the 9/11 attacks allows for virtually unlimited information gathering without a warrant and places the executive branch out of reach from any congressional oversight.
Simply put, according to the executive branch, the commander-in-chief possess the authority to spy at will as part of his constitutional war powers, and Congress can’t interfere, short of revoking the AUMF.
Even the Department of Justice acknowledges that the FISA dictates foreign intelligence gathering and that its restrictions limit executive power. A 2004 memo on the STELLAR WIND program summarizes foreign intelligence gathering authority.
“Generally speaking, FISA provides what purports to be, according to the terms of the statute, the exclusive means for intercepting the content of communications in the United States for foreign intelligence purposes… FISA expressly makes it a felony offense for any person intentionally to conduct electronic surveillance under color of law except as provided by statute. This provision is complimented by an interlocking provision in Title III – the portion of the criminal code that provides the mechanism for obtaining wire taps for law enforcement purposes.”
That would seem to preclude the president, or other players in the executive branch, for unilaterally engaging in surveillance. It also indicates that Congress could place additional restrictions on the NSA through reform of FISA and other congressional acts relating to spying.
But the DoJ claims war powers unleashed by the AUMF voids the exclusivity of statutory authority. In fact, the executive branch claims any restriction on the president’s spy authority is unconstitutional.
“We conclude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of this authority.”
Keep in mind, the AUMF went into effect 13 years ago, and there is no end of “hostilities” in sight. Also keep in mind that we know from information provided by whistleblowers such as William Binney and Edward Snowden that much of the surveillance conducted by the NSA does not exclusively target “terrorists.” Essentially, the president claims nearly limitless authority, subject to absolutely no oversight, to spy on whomever he wants with no sunset on the power.
Consider the ramifications: even if civil libertarians and privacy advocates get the congressional reforms they seek, it will not do anything to end the unconstitutional, immoral, unwarranted spying directed by the executive branch. It considers itself exempt.
This explains why I don’t put a lot of faith in Washington D.C. to ever “fix” the surveillance state.
The political class has institutionalized the legitimacy of illegal, dragnet spying. “Reforms” will only tinker around the edges, and as we’ve seen, even substantial reforms cannot dent the claimed executive authority. We can hope the courts will step in at some point, but history indicates federal courts will side with federal power, especially with the government screaming “national security.”
It took external pressure to kill Jim Crow. It took men and women acting at the local level to catalyze change from the bottom up. Without Rosa Parks saying, “No!” on a Montgomery bus and sparking a movement, Jim Crow would have continued to live.
If we want to stop the NSA, we need a “No!” moment. Otherwise, we best get used to subjugation.
OffNow provides a strategy to actually impede the operation of the NSA at the state and local level, using legal mechanisms.
It can serve as our “No!” moment.
Join us today at OffNow.org!