For NSA surveillance matters, the courts currently grant deference to the executive. Only the executive can make decisions on national security matters.
Kalanges 14 – Shaina, second-year law student at the Northern Illinois University College of Law with a Bachelor of Arts from the University of Illinois Urbana-Champaign, Assistant Editor of the Northern Illinois University Law Review, 2014 (“Modern Private Data Collection and National Security Agency Surveillance: A Comprehensive Package of Solutions Addressing Domestic Surveillance Concerns,” Northern Illinois University Law Review (34 N. Ill. U. L. Rev. 643) Available Online to Subscribing Institutions via Lexis-Nexis)
[*652] On the other hand, Judge Pauley from the Southern District of New York delivered an opposite ruling in ACLU v. Clapper, nearly ten days after Judge Leon ruled in Klayman. n64 Judge Pauley reasoned that the NSA could not achieve its objective of combating future terrorist attacks if it could not conduct a sweeping collection of every telephone record. n65 Like Judge Leon, Judge Pauley described the querying system the NSA uses on surveillance targets. n66 However, unlike Judge Leon, Judge Pauley discerned a greater purpose behind the queries and held that the system was constitutional and kept with the Smith precedent. n67 Judge Pauley applied Smith to find that the communication records were already handed over to private companies by citizens who could not expect that the information could still be considered private to the individual. n68 Judge Pauley took his analysis a step further and bolstered a need to keep FISC matters secret by citing historical deference to the executive when it comes to matters of national security. n69 Judge Pauley dismissed the ACLU's claim and held that the program was meant to remain classified and unchallenged and that telephony metadata collection is constitutional. n70
Also, Judge Pauley held that a mere fear of chilling of free speech does not provide standing to challenge telephony metadata collection. n71 While cellular technology evolved since Smith, Judge Pauley cited the Klayman court and maintained that metadata remains unchanged and that the information gathered only contains phone numbers, dates, and times. n72 Judge Pauley also commented on the previous issues FISC faced, explaining that the FISC followed court rules to weed out issues of noncompliance in the past. n73 The Intelligence Committees received detailed reports of those noncompliance issues, which were addressed with tighter standards on the NSA from the FISC. n74 Accordingly, the NSA director also did comprehensive evaluations of section 215 practices and established the position of the director of compliance. n75
[*653] While Judge Pauley reasoned that any issues with noncompliance were weeded out of the current surveillance process, one legislative proposal, which gained nearly eighty-five sponsors, reacts to this issue quite differently and suggests that more may be done to insure American civil liberties. n76 Additionally, Judge Leon in Klayman picked apart the examples of metadata collection that the government provided to demonstrate the metadata program's progress in preventing terrorist attacks. n77 The Klayman court discerned that any uncovered terrorists were already found with other evidence that the metadata program merely corroborated. n78 Judge Pauley, in Clapper, held to the contrary and used some examples to demonstrate how section 215 surveillance stops terrorist attacks before they take place. n79 Judge Pauley even explained that the current program would have identified and prevented 9/11 hijacker Khalid Al-Mihdhar from carrying out his attack. n80
Nonetheless, both Judge Leon and Judge Pauley agreed on one point: that the legislature constructed FISA to exclude third party surveillance targets from challenging the NSA's compliance with the statute. n81 But both judges agreed that claims challenging the constitutionality of the statute were not precluded. n82 While Smith may never be overturned, distinguishing NSA surveillance from the surveillance in Smith may open the door to new Supreme Court precedent setting or suggesting constitutional guidelines for certain domestic surveillance practices. n83
The ACLU and the Supreme Court may have the potential to shape domestic privacy expectations with the Constitution under their belt, but Judge Pauley was correct in holding that deference should be granted to the executive in dealing with matters of national security. n84 Ultimately, the executive will decide where NSA surveillance is headed. n85 The Supreme Court will have Judge Pauley's point in mind and avoid appearing to undermine executive determinations if any ruling on the constitutionality of [*654] NSA practices emerges. n86 Accordingly, since President Obama approved continued surveillance under section 702 and section 215, the greatest policy changes in NSA practices may likely be implemented through legislative action that a Supreme Court ruling would heavily influence by articulating some constitutional guidelines, furthering down the path of Keith. n87
Breaking judicial deference to the executive in matters of intelligence gathering undermines executive flexibility.
Yoo 14 — John Yoo, Emanuel Heller Professor of Law at the University of California, Berkley, Visiting Scholar at the American Enterprise Institute, J.D. from Yale University, 2014 (“NSA Spying — Will Obama Lead or Punt to Courts, Congress and Harm the Presidency?,” American Enterprise Institute, January 4th, Accessible Online at http://www.foxnews.com/opinion/2014/01/07/nsa-spying-will-obama-lead-or-punt-to-courts-congress-and-harm-presidency.html)
Under Barack Obama, the presidency’s control over national security intelligence has come under a [damaging] crippling cross-fire.
From the right, in December Bush-appointed Judge Richard Leon found the National Security Agency’s “Orwellian” phone records collection program to violate the Constitution.
From the left, the White House’s own blue-ribbon commission recently urged the president to place an “out of control” NSA under unprecedented judicial, bureaucratic, and even private controls.
If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.
Mr. Obama may rise up to defend the NSA from the growing chorus of critics in Congress, the media, and the antiwar wing of his own party.
He might blunt the effort to subject the NSA’s national security mission to the stricter rules that govern domestic law enforcement.
He might even preserve the intelligence agency’s ability to collect phone calls and email data that, by the account of two successive administrations of both parties, has stopped terrorist attacks on the United States and its allies.
But don’t count on it.
Mr. Obama’s first instinct is to shift national security responsibility to other branches of government— witness his past attempts to try the 9/11 plotters in civilian court in New York City, move the terrorists in Guantanamo Bay, Cuba to a domestic prison, and ask Congress decide on intervening in Syria.
If he makes the same mistake again, Mr. Obama will follow in the footsteps of failed presidents who shrunk before similar challenges, to the long-term harm of their office.
Kicking the intelligence question to Congress or the courts undermines the Oval Office by reversing the polarity of its constitutional powers.
The Framers created the presidency precisely because foreign affairs and national security pose unique challenges to a legislature, which cannot react quickly to sudden, unforeseen events.
“Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man,” Alexander Hamilton explained in “Federalist 70.”
Only a single president could marshal the nation’s resources with the energy and vigor to effectively protect its security. “Of all the cares or concerns of government,” he added in “Federalist 74,” “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”
Presidents who have defied the Framers’ design have led the nation into some of its greatest disasters, despite their great intellect or political skills.
Executive flexibility is crucial to stopping terrorism, preventing WMD proliferation, deterring rogue nations, and staying in line with multilateral alliances. This trumps constitutionality – the international scene is changing.
Li 09 – Zheyao, Candidate, Georgetown University Law Center; B.A., Political Science and History, Yale University, 2009 (“War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” Georgetown Journal of Law & Public Policy (Vol. 7, No. 1, p. 373) Available Online to Subscribing Institutions via Lexis-Nexis)
IV. WAR POWERS IN THE FOURTH GENERATION OF WARFARE
Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct result of the waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The proliferation of nuclear weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather, they see their fight as a life-and-death struggle, wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends.124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that:
In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including knowledge as well as manufacturing industries). 125
It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new theory of war powers. As evidenced by Part M, supra, the constitutional allocation of war powers, and the Framers' commitment of the war power to two co-equal branches, was not designed to cope with the current international system, one that is characterized by the persistent machinations of international terrorist organizations, the rise of multilateral alliances, the emergence of rogue states, and the potentially wide proliferation of easily deployable weapons of mass destruction, nuclear and otherwise.
B. The Framers' World vs. Today's World
The Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of armies and their use. Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the United States are unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to adequately defend against low-intensity conflict conducted by non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128
The challenge in formulating a new theory of war powers for fourth generational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more regular, better organized, and more attuned to the purpose of war-that is, to its political objective."'1 3 ' That era is now over. Today, the stability of the long-existing Westphalian international order has been greatly eroded in recent years with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war.
This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by fourth-generational warfare, one must understand the threat it is being adapted to confront.
C. The Jihadist Threat
The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis viewthe United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that "God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist ideology, be it al-Qaeda or other groups, will continue to target the United States until she is destroyed. Their ideology demands it. 139
To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict.
D. The Need for Rapid Reaction and Expanded Presidential War Power
By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme.
As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. 44 In the era of fourth-generational warfare, quick reactions, proceeding through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd suggested, "we should operate at a faster tempo or rhythmthan our adversaries." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute.
In America's current situation, however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory. As a slow-acting, deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare.Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourth generational opponents.