Panel 5 Protection the Nation: Executive Power in an Age of Terror

Meredith Perry, Executive Editor of the Government Law Review

The Powers of the President in an Age of Terror—Dr. Abraham Wagner, Adjunct Professor of International and Public Affairs at the School of International and Public Affairs, Columbia University.

      Dr. Wagner started his talk on the use of executive powers by the President with a discussion of September 11th.  Dr. Wagner noted how prior to September 11th the United States had not been attacked since 1812, noting that at the time of Pearl Harbor, Hawaii was merely a U.S. territory and not a state.  Further, the media exacerbated the magnitude of September 11th.  Dr. Wagner detailed how the casualties of September 11th totaled around 3,000 and how this number is not enough to cause the end of a republic, especially when about 457,000 people die each year from smoking.  Also, Dr. Wagner mentioned how September 11th was the most significant intelligence failure since the 1962 Missile Crisis.  It is also important to note that during the months following September 11th, there was a great amount of limited and conflicting data.

      Dr. Wagner discussed how executive power was an enormous concern of our Founding Fathers, as seen in the Federalist Papers.  He transitioned to President George W. Bush’s use of executive power by pointing out that its use, throughout time, is more cyclical than serial.  President Bush used executive power following September 11th, having no experience in national security, and with a “supporting cast,” which included Cheney, Rice, Rumsfeld, Tenet, Powell, Wolfowitz, and Ashcroft.  The need to save the nation from impending threats, such as the report of a nuke targeting New York City (also known as the Dragonfly threat), spurred President Bush to exercise Executive Power. The Bush Doctrine changed the U.S. approach from that of strategic globalism to preemption, as is witnessed by the United State’s actions in Afghanistan and Iraq.

      Through President Bush’s use of executive power, the U.S. detained foreign nationals in such prisons as Guantanamo Bay, tortured these prisoners and detainees through the implementation of secret programs (now supported by the Department of Justice’s “Torture Memos”), and instituted a domestic surveillance program.  Dr. Wagner detailed how there is no approval or support for these actions under FISA, Title III of § 1986, nor the U.S. Constitution.  Both of the laws governing electronic surveillance, FISA and Title III, are ancient compared to the technology used today.  Dr. Wagner specifically commented that they are “best seen in the Smithsonian and not applicable to our current means of communication.”  In regards to the Constitution, neither the First nor the Fourth amendments really apply.  Particularly, Dr. Wagner commented that the Fourth Amendment and its right to privacy might apply in regards to preventing the “Big Brother” listening; however, there is nothing about communication explicitly anywhere in the Constitution or the Amendments.

Continue reading “Panel 5 Protection the Nation: Executive Power in an Age of Terror”

The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution

Marisa Floriani, Staff Writer

In a New York Times article on December 16, 2005, the world became aware of former President Bush’s decision to wiretap Americans via the National Security Agency (“NSA”) in order to obtain terrorist intelligence.1  Although the NSA had predominantly monitored activity abroad, former President Bush had the NSA screen intelligence within the United States borders without a court order for the first time in its history.2  The New York Times article alerted its readers, “The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices . . . .”3  Why the change?  Former President Bush felt that this was “necessary” in order to accomplish an ultimate goal of counterterrorism.4  Although today’s society is constantly worried about the threat of terrorism, which is not likely to dissipate in the near future, Bush’s decision was criticized because it was inconsistent with the rights our forefathers articulated in the Constitution. 

The Watergate scandal is arguably the initial impetus leading to the enactment of the government’s practice of wiretapping.5  Once the committee reviewing the Watergate scandal had reviewed the country’s history regarding wiretapping, it was clear that there needed to be legislation that did not infringe upon Americans’ rights; the Foreign Intelligence Surveillance Act (“FISA”) sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.6  Continue reading “The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution”