Bush’s Lawyers Try To Justify Wiretapping
By Justin Gardner | Related entries in Law, The War On TerrorismYes, they’re talking about the Authorization to Use Military Force (AUMF) that Congress gave Bush after 9/11, even though they specifically said that they didn’t have the right to do it back on December 22nd, 2005:
The Justice Department acknowledged yesterday, in a letter to Congress, that the president’s October 2001 eavesdropping order did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.”
Now the lawyers are revising that statement (or acting like they never said that), and suggesting that the AUMF gives Bush (from what I read here) an unquestionable authority to do whatever he pleases in the WOT.
WASHINGTON, Jan. 19 - The Bush administration today offered its fullest defense of the National Security Agency’s domestic eavesdropping program, saying that congressional authorization to defeat Al Qaeda after the Sept. 11 attacks “places the president at the zenith of his powers in authorizing the N.S.A. activities.”In a 42-page white paper, the Justice Department expanded on its past arguments in laying out the legal rationale for why the N.S.A. program does not violate federal wiretap law and why the president is the nation’s “sole organ” for foreign affairs.
Does anybody honestly think that the framers of the Constitution would give the President this type of carte-blanche power? Call me crazy, but something tells me that the guys who defeated a monarchy didn’t have that in mind.
And if you’ve forgotten what the AUMF said, remember Tom Daschle’s editorial in the Washington Postauthorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aidedâ€Â? the attacks of Sept. 11.
Then, the administration’s revised version:
the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.
I bolded the difference, and it should be obvious now why the omission was significant. It should also be obvious why Congress saw where that could lead and revised it back to the previous language.
Yes, it’ll be interesting to see how this plays out, but I still think Bush overstepped.
And by the way, I think he knows it.
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January 23rd, 2006 at 3:25 pm
This issue is going to come down to statutory interpretation (or at least it should), and the first rule is to give the words in the statute their plain and ordinary meaning as long as they are not ambiguous. If the statute gives the prez the right to use “military force,” which I believe is where they are deriving permission to wiretap, I do not think “military force” is ambiguous, and everyone knows what springs to mind when you hear the words “military force.” The great thing about this rule of statutory construction is that all the viewers at home can play along because “plain and ordinary meaning” is generally what one would find in the dictionary (or in their own minds already!).
I’m POSITIVE that there are a great many legal arguments around this, because there are a great many legal arguments for just about any topic under the sun, but if the decision-maker is going by the book in this case (I’m referring to a fair and impartial judge who applies the law in an unbiased manner) there is NO WAY that statute gives Bush the right to do what he did.
January 31st, 2006 at 4:59 pm
I just don’t see it that way, the Constitution gives the President the authority over Foreign Intelligence gathering - this is something that cannot be taken away from the President unless it is an ‘Amendment to the Constitution’ - which we have not had…. There is no way that you could possibly stretch this NSA stuff to claim that it isn’t ‘foreign intelligence’ in relation to our national security.
January 31st, 2006 at 5:34 pm
debsay, they’re monitoring communications in THIS country between non-terrorist elements, and that’s been demonstrated.