Say Anything Blog

Would that FISA compliance have made it all okay? Do you really think there would have been no scandal?

There would still be lots of griping but at least the Administration could claim that no laws were broken.

Hell yes it would have made a difference.
Our government would have abided to the rule of law.

Both of you are concluding that the President’s Article II war powers don’t make his actions legal.  I’m not sure what your basis is for that.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

I found this commentary persuasive...there is lots out there.

You find it persuasive, I don’t.  I don’t see how anyone is coming to any sort of legal conclusions when we still don’t know exactly what was done and who was monitored.

Guess we have a difference of opinion.  I think the problem here is not that the President’s war powers give him the authority to authorize what he authorized (and we still don’t know the exact nature of that), but rather that Congress has gotten lazy in authorizing war.  If the AUMF were more detailed and specific, if it were an actual declaration of war as opposed to a poorly defined authorization of force, we might not have this problem.  Or, at least, the executive’s powers would be easier to define.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

I think the problem here is not that the President’s war powers give him the authority to authorize what he authorized (and we still don’t know the exact nature of that), but rather that Congress has gotten lazy in authorizing war.

Your Congress has certainly been compliant since 911 although not enough to get changes made to FISA apparently. I’m not sure who you would have had Congress declare war on in order to define or clarify the expansion of Presidential authority you suggest is justified. If the surveillance is directed at international terrorists rather than a foreign State then I’m not sure how a declaration of war would apply...unless you’re suggesting that a formal war on Iraq fits the bill but that seems a stretch to me.

MA:

If the surveillance is directed at international terrorists rather than a foreign State then I’m not sure how a declaration of war would apply…unless you’re suggesting that a formal war on Iraq fits the bill but that seems a stretch to me.

Mike, you need to check your detective work there..  The Authorization for the Use of Military Force on September 18, 2001 says:

(a) IN GENERAL- That the President is authorized to use 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.

This is completely unambiguous.  It specifically authorizes the President to use forces against nations, organizations and persons associated with the 9/11 attacks to prevent them from carrying out future acts of international terrorism.  (Hence it invokes the President’s War Powers.) It frankly couldn’t be more clear.

Secondly, the use of “all necessary and appropriate” force in any reasonable interpretation includes the use of surveillance and the interception of enemy communications. That is also a clear fact.

The 2001 AUMF provides sufficient grounds for the President to authorize warrantless international intercepts against al Qaeda terrorists and their supporters.  Any lawyer who argues otherwise needs to have his brain examined.  John W. Dean happens to be one of those people, and I’ve been personally aware of that long before this latest proof of his incapacity.

The only question, which is left unaddressed by people like Dean who can’t connect more than two dots before getting lost, is whether 4th Amendment rights trump the President’s Article II, Section 2 powers.  That is a very different question than the ones being asked by all of the lost boys on the web.

Carrick...I was responding to Rob’s comment that

If the AUMF were more detailed and specific, if it were an actual declaration of war as opposed to a poorly defined authorization of force, we might not have this problem. Or, at least, the executive’s powers would be easier to define.

I don’t know if America can declare war on Al Qaeda...I assumed that the AUMF was used because it can’t but I certainly stand to be corrected.

As to your point about the clarity of the President’s reliance on Article II to ignore and/or break laws, I think that the question is still open. I certainly can’t say that he has or hasn’t that ability but then I’m not a Constitutional lawyer and even they disagree with each other. I would have thought that extralegal activity would require oversight such as provided for in FISA, particularly so in a political system that emphasises the need for a separation of powers.

Mike, as I understand it, “declaration of war” and authorization are synonymous within US law.  The only distinction is semantics.  As you point out, can you declare war on an individual?  Probably not, but it’s not relevant.

As to your point about the clarity of the President’s reliance on Article II to ignore and/or break laws, I think that the question is still open

It doesn’t give him the right to ignore and/or break laws.  Nor have I ever said it did. 

The AUMF triggers Presidential War Powers (Article II, Section 2).  Under our constitution, the President has sole authority to direct our military actions in times of hostilities.  That’s why he’s called Commander in Chief and not Congress’s Bitch that Runs the Military for Them [tm]

You cannot in the US constitution override the President’s Article II powers by legislative action.  The only way you can do this is to amend the constitution.

As I’ve pointed out before, this does not make the Congress powerless.  They can revoke the AUMF or even just kill funding (which is how the Vietnam War ended).  What they cannot do is legislate away the President’s war-time powers.  Laws like FISA are statutory law and cannot bind the President’s actions as authorized by the Constitution.

To me, it is a no-brainer that the President has the authority, after the AUFM, to authorize intercepts of international communication.  The only issue is whether the IV Amendment applies when that communications originates or ends in the US, and when an US citizen on US soil is the recipient or originator of that international communication.

Even liberals have generally said “well duh, of course they are going to be listening.” This implies no reasonable expectation of privacy, suggesting to me that the IV Amendment does not protect you in cases like this.

By the way, my comment

Even liberals have generally said “well duh, of course they are going to be listening.”

was provoked by listening to a liberal critic on public radio.

Basically, he was asserting that the President could not have been motivated by national security concerns when he classified the program because “of course, they’re listening”.

This reasoning is basically circular.  If the President were to need congressional authorization (such as FISA), it would be precisely because the IV Amendment placed limits on his War Powers.  However, it is generally accepted that the IV Amendment does not apply in circumstances where “no reasonable expectation of privacy would exist”.  Hence, by this critic’s own argument, Bush would have been within his Article II powers after the congressional AUFM.  (The fact that this obvious point went flying over the critic’s head is another matter.)