Will The AUMF Be Bush’s Saving Grace In Wiretap Scandal?
By Justin Gardner | Related entries in Law, The War On TerrorismThe AUMF, or authorization for the use of military force, gave Bush the right to use whatever force he deemed necessary to fight any country or organization in the War on Terrorism.
For a moment, let’s set aside the fact that the War on Terrorism is essentially a war on a tactic, and instead focus on the AUMF as University of Chicago law professor Cass Sunstein sees it:
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants — notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court’s view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of “all necessary and appropriate force,” also authorizes surveillance of those associated with Al Qaeda or any other organizations that “planned, authorized, committed, or aided the terrorist attacks” of September 11.The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President’s wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates — as indeed he has said — then the Attorney General’s argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
I agree with the professor’s overall thoughts, including the nature of who can be wiretapped legally and who can’t. After all, it IS the law.
And yes, there needs to be a distinction made between traditional wiretapping during war time and what Bush has done. Wiretaps were okayed, without retroactive warrants, for spying on people within this country who have absolutely no ties to any terrorist or terrorist organizations. The AUMF does not allow this type of behavior and it seems like this is what has transpired. Of course, you’ll probably hear (and probably already have heard) many talk about how Bush has absolute authority to spy on whomever he pleases given the sweeping nature of the WOT. Well, that’s just not true. Plain and simple, it’s false. There are limits and from what I’ve read so far, Bush overstepped them.
We’ll find out more in the coming days and weeks about what has gone down in the name of protecting our nation, but in the meantime definitely read the post I found this link: New Sisyphus.
This entry was posted on Thursday, December 22nd, 2005 and is filed under Law, The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
December 22nd, 2005 at 11:01 am
While I personally think it’s a little tenuous to say that the AUMF encompasses surveillance, I have no doubt that a court could (and very possibly will) interpret it that way. Also, I whole-heartedly agree with Justin that there are limits to this. Presidents do not have unfettered authority over anything. (I know this because while I was studying for the bar exam this past summer, on the subject of constitutional law, we were told never to pick an answer that said “the president has unfettered authority to . . . .” because that answer will always be WRONG!!!!!!!!!!!!!!)
Now, what Bush will most likely do is try to make up a “legitimate reason” to link the people he spied on to the WOT. Even if the court reviews the case under the rational basis standard of review, which is the lowest burden of proof (so to speak) the Pres would have to meet, this may or may not fly.
December 22nd, 2005 at 12:04 pm
OK, I’ll bite….
Who has been arrested under this Wiretap Scandal that is not related to the WOT?
I’m not saying they aren’t there, I just haven’t heard of them yet.
Same goes for the Patriot Act.
December 22nd, 2005 at 1:39 pm
Justin wrote:
Actually it’s closer to the truth to say that this war, so far, has been characterized by Bush (and others) in a way that implies merely a war on a tactic. As you may know I’ve always regarded this as a mistake. Now it’s starting to sound as though this wiretap controversy is the beginning of this President, and perhaps the nation at large, paying a price for not calling the Long War what it really is – a war against a specific set of “theo-talitarian” ideas and those who harbor them.
On the other hand, even characterizing the Long War as it should be characterized would create its own set of disturbing issues with respect to the rights and freedoms we enjoy. In that case, wiretapping of American citizens might not only still be deemed necessary, but may be just the beginning. After all, a war against ideas implies that censorship of those ideas and even politicide (theocide?) against those who espouse them may also be regarded as necessary components of the war effort on the home front. And as I’ve pointed out before, this war is likely to continue for many, many years, meaning whatever measures the U.S. takes in its course are likely to become institutionalized, and therefore de facto permanent.
If we, the American people are indeed shrugging off the wiretapping program, as this Newsweek commentary suggests, what other freedoms are we willing to write off under the rubric of “c’est la guerre”? The answers to this question will ultimately determine the impact of 9/11/2001 on the national character.
December 22nd, 2005 at 2:57 pm
Why am I shrugging it off…
As long as it’s being used to catch terrorists/gather intelligence about terrorists/stop potential terrorist plots, then I have absolutely no problem with it.
However, if it comes out in the future that Joe Smith robbed a bank in Lincoln Nebraska, then called his cousin in Germany to brag about, and he was arrested because of that wiretapping…. yeah, I’ll agree that they’ve gone too far. But I’ll still be glad ol’ Joe is in jail.
Just because the potential for abuse is there, it doesn’t mean it will happen. I own guns, therefore, I have the potential to kill someone with one of them. Does that mean my guns should be taken away?
December 23rd, 2005 at 1:01 am
I admit — I’m coming around on on this deal. I don’t think Bush broke the law. That is not an endorsement for his good judgment or constitutional principles. I don’t think that he he has managerial skills to with the Brave New World that he is forging. No way — it isn’t a matter of WHETHER the NSA or CIA HAS or WILL wiretap suspected U.S. cititens (“affiliated” with “enemy combatants” posing a “threat”) within the United States, it is WHEN. If the “enemy” is that much of a “compatant”, won’t there surely be times that he enters the U.S. and uses his cell phone to call someone else in the US. The “enemy combatant” of all “enemy combatants” is the American citizen which makes that “enemy combatant” a top priority — because an American citizen has advantages in mobility and identity. Which makes the the most LOGICALLY person to spy on: American-citizen “enemy combatants” with cell phone already IN the United States posing a threat. Any other policy would be a stupid fucking waste of our tax dollars. If I’m going to have my civil liberties trammeled, I want it to be a damn effective trammeling.
December 23rd, 2005 at 1:04 am
I hope everyone gets a good chuckle at my spelling. It not much better before midnight.