Click at the picture to see all the “Duelos” that have already been published
Does the argument of “fighting terror” provided by the United States legitimize its international surveillance activities?
YES
There is no one-size-fits-all answer to the legal questions presented by United States’ foreign intelligence surveillance activities. Instead, the relevant law draws upon international and domestic sources, civil liberties protections and statutory authorizations, treaties and customary law. In the end, the domestic and international law scorecards are inconclusive. While there is positive law authority for much of the foreign intelligence collection that the United States undertakes, domestic and international law limits exist and must be respected.
After President George W. Bush announced that the United States was engaged in a “global war on terror” following the 9/11 attacks, it did not take long before critics at home and abroad complained that there was no legal basis for war against a tactic – terrorism – where no enemy is identified, and no authority for military action that wholly fails to respect sovereign boundaries.
The President surely possessed domestic and international legal authority to repel the 9/11 attacks, however, and our Congress soon further enable the Commander in Chief to use “all necessary and appropriate force” against those in any way associated with the attacks.
Within a few years, our Supreme Court agreed that the President’s authority reached beyond the use of military force and extended to military detention of U.S. citizens detained on an Afghan battlefield. The Court reasoned that detention operations are incident to the use of force. By implication, intelligence operations may be permitted by those same authorities.
NULL
NULL
Reprodução/Bloomberg
William C. Banks is Board of Advisors Distinguished Professor of Law, Syracuse University College of Law (NY)
The UN Security Council recognized soon after 9/11 that member states could exercise “the inherent right of individual or collective self-defence” in taking military action against the Taliban and al Qaeda in Afghanistan, the self-defense justifications for extended intelligence activities outside the Afghan battlespace remains controversial and legally unsettled. Just as intelligence collection and detention operations may be viewed as incident to the use of military force in U.S. law, those activities may be part and parcel of fighting war or engaging in armed conflict abroad at international law.
However, when the intelligence collection takes place in states or from persons far removed for active battlefields against the Taliban or al Qaeda and its affiliates, many states and human rights groups view the intelligence activities as unlawful. According to the United States, its self-defense authority extends to wherever its non-state enemies may be found. In states with functioning law enforcement and intelligence capabilities, where cooperation with the United States may serve shared counterterrorism objectives, the United States’ unilateral insertion of intelligence collection of Internet or telecommunications traffic from those states may be viewed as violating state sovereignty.
In domestic law, most of what has been revealed about NSA activities was authorized by our Congress, in the 2001 Patriot Act and in 2007 and 2008 amendments to the Foreign Intelligence Surveillance Act. Only the collection and possible use of metadata by NSA arguably stretches existing statutory authority. A larger lesson here at home is the need to involve the people and our elected representatives in an extended discussion of the tradeoffs we are willing to make between security and privacy/transparency.
* William C. Banks is Board of Advisors Distinguished Professor of Law, Syracuse University College of Law; Professor of Public Administration and International Affairs, Syracuse University Maxwell School of Citizenship and Public Affairs; and Director of the Institute for National Security and Counterterrorism.