After the terrorist attacks of September 11th, 2001, a joint resolution was passed by the Senate and Congress. It provided the President with the broad brush powers to take "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons .” Very much commissioning terrorism as war framework that is in line with the succeeding actions and policies adopted and undertaken by the Bush administration.
The passage of the USA Patriot Act, the lowering of the FISA wall, Warrants, Pen Registers, Trap and Trace, National Security Letters and Warrantless NSA Wiretapping, including PRISM, MARINA, and MAINWAY, fell in line with this model due to the curtailment of civil liberties of American citizens that these programs authorized. Many argue that these curtailments are nothing new, but rather powers of the executive that it has used countless times during periods of national emergency. This kind of shift of power and limiting of civil liberties has also been embedded into the US constitution in times of emergency. Using examples such as Lincoln’s raising an army, withdrawing money and launching a blockade without congressional approval, the declaration of war in places like Korea, Kosovo, and Libya, and FDR's interception of communications both internationally and domestically before the Pearl Harbor attack.
However, there are two main argument points for why this analogous understanding would not apply and hence terrorism as war would not fall in line. The biggest and most concerning difference is that while other instances of war would eventually end, US history had limited scope in terms of time. Thus, there is no foreseeable end to the 'war on terrorism.' In these historical examples that are often synonymized, there was an understandable and probable end. The curtailment of these civil liberties could be understood as temporary, but in the current 'war' against terrorism, there is no definitive end, as the war is not against a state or even just one concrete group.
Even if it is accepted that the security ramifications are far too high and the United States is better safe than sorry, this argument too falls flat due to the ineffective nature of these programs. Take the case of Omar Mateen, for example, whose shooting rampage at a gay nightclub in Orlando, Florida left 49 dead; James B. Comey, the director of the FBI, had a file on Mateen, but he also had files on hundreds of thousands of other individuals across the nation. He compared finding suspects and preventing attacks to “looking for needles in a nationwide haystack.” These far-reaching surveillance programs simply do not work, as intelligence agencies are bombarded with hundreds of thousands of possible leads and suspects; far too many, most of whom never commit a violent attack. To be able to reasonably keep an eye on all of them, analysis of these programs found no evidence that these programs have even prevented an attack.
