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President Claims Spying Authority Part Of War Powers and Congress Can’t Interfere

While NSA reform efforts tend to focus on congressional action, documents obtained by the ACLU confirm suspicions that the agency justifies much of its warrantless spying on executive orders.

This raises concerns in and of itself, but becomes even more disturbing knowing that by combining executive orders with the Authorization for Use of Military Force passed after 9/11, the president claims virtually unlimited authority to spy on you, and actually contends any attempt by Congress to regulate its surveillance program is unconstitutional.

ACLU obtained documents relating to Pres. Reagan’s Executive Order 12333 from the NSA, the Defense Intelligence Agency and others agencies through a Freedom of Information Act request.  The ACLU says the documents prove that the presidential EO “governs most of the NSA’s spying.”

According to an ACLU report by Alex Abdo, the documents make it clear that the NSA collects data from Americans “about much more than just terrorist threats,” and operates with little to no oversight.

“Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts,” Abdo wrote. “We’ve already seen that the NSA has taken a ‘collect it all’ mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.”

The documents also reveal the NSA word games know as “vocabulary of misdirection — a language that allows [it] to say one thing while meaning quite another.” Using redefined terms, the agency stretches its surveillance activities far beyond what directives appear to allow. For instance, the NSA does not consider data “collected” until somebody actually reads it. In other words, the NSA gathers massive amounts of private information and stores it, but then tells Americans with a straight face that it does not “collect” data without a warrant.

Under both Presidents Bush and Obama, the executive branch has combined executive orders with the 2001 AUMF to claim the authority to conduct virtually unlimited information gathering without a warrant. 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.

The 1970 Foreign Intelligence Surveillance Act sets up the statutory authority for foreign intelligence gathering. Even the Department of Justice acknowledges that its restrictions limit executive power in peacetime. 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, from 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.

This means that even in the unlikely event Congress passes significant legislation to reform FISA and the Patriot Act to protect privacy and limit warrantless spying, it will have little practical effect as long as the president claims virtually unlimited authority to spy on us under the AUMF. With no end in sight to the “War on Terror,” this falls into the category of wishful thinking. Depending on the courts to limit presidential authority will also likely prove disappointing. Federal courts historically rubber-stamp federal powers, no matter how broadly interpreted, when exercised in the name of “national security.”

In order to rein in the surveillance-state, we must take Rosa Parks like action at the state and local level. The Civil Rights movement was largely successful because of grassroots pressure. The OffNow strategy is designed to create just that kind of pressure by cutting off state and local resources to the NSA.

To find out more about the OffNow plan visit http://www.offnow.org/plan.

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