Kevin: "If the intent of Congress means anything at all, this is pretty good evidence that it didn't intend for the AUMF to give the president power to override FISA within the United States. And the White House knew it."

Of course the White House knew it. But the White House also wanted to make sure the intent of Congress means nothing at all, which is probably why its occupants went ahead and did what they wanted to do.

If the intent of Congress means anything at all, this is pretty good evidence that it didn't intend for the AUMF to give the president power to override FISA within the United States.

Kevin, even Professor Cass Sunstein of the University of Chicago Law School disagrees with you.

Link

"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.)"

Yesterday I found myself granting that Bush might have some excuse to have pursued some form of domestic wiretapping in the immediate wake of 9/11, simply given the felt urgency at that fevered time.

Daschle's report on the immediate pushback Congress gave Bush suggests the opposite -- that even then there were cooler heads that thought it was a quite bad idea, and who were, indeed, as representatives of Congress, granted the power by the Constitution to deny Bush that overreach.

Everything about how the process here really unfolded does make Bush look like a man determined to behave like a dictator beholden to no one.

Kevin,

As a "shrill" minority has said all along, the plan was tyranny, accommodating Democrats were just too blind/feeble to see it. Those Democrats who conceded power to the boy king are just as guilty...that includes you Kevin.

While I normally agree with Sunstein, this particular opinion of his (which is an opinion) is crap.

He says Warrantless Wiretapping=Force, therefore congress authorized it. Circular reasoning.

Read what Daschle wrote about the authorization, and how congress watered it down, then the White House tried to slip in more loopy language at the last second, which was again shot down. The intent of congress was clear: do not give Bush unlimited power.

Also if you read Sunstein's actual post:

This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued -- an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).

You see that he does NOT conclude that the president was with his rights to make these orders. All Sunstein is saying is that the AUMF gives him authority, but it's possible that the 4th amendment overrides that authority, and furthermore, down in the comments, he makes the point that though we can only speculate, the likely reason why Bush didn't seek FISA warrants is because the taps were outside of the scope of FISA (ie. he knew they were illegal, and was counting on being able to slip by in the grey area of the wording of the AUMF, and terrified americans wanting Bush to err on the side of caution to protect them from terrorists - irregardless of law).

The Resolution is not very wordy.

"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."

I think that is the meat of it. I think that this would include organizations or persons whether they reside in the US or not.

Best quote from the Sunstein page:

Ultimately, if the administration requires the citizens to trust it, its members have to have talking points that do not in their double-talk and obfuscation betray a lack of trustworthiness.

http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html

What was it the Earl of Rochester said of Charless II?

We have a pretty, witty king,
whose word no man relies on,
he never said a foolish thing
nor ever did a wise one.

I've been thinking today about the aid campaign that the Democrats should be running. I can't decide if they ought to talk about Germany and the rise of fascism and the parallels to today or whether they ought to claim that Bush is acting like a king.

The punchline is that Americans are losing our democracy, excuse by excuse.

The righties would go crazy, just ballistic, but we should just keep on saying it over and over, until the righties choke on their own spew.

We've gone from one GW who refused to be King to another GW who'd like nothing better.

berlins on December 23, 2005 at 12:48 AM:

I think that this would include organizations or persons whether they reside in the US or not.

True. However, by the section that you have quoted, it only authorizes the use of force, and does not explicitly grant permission to suspend the 4th Amendment.

The real 'meat of it' is not whether Dubya was authorized to use force, but whether Dubya's creative interpretation of his authorization to use force superseded Constitutional protections...

whether they ought to claim that Bush is acting like a king.

I like this better. It's less inflamatory. Plus, King has an air of regression back to the dark ages and pretender to the throne is the butt of jokes, while wannabe hitlers are just sickening. I think the single biggest way to thwart Bush is to get everyone laughing at him.

Daschle's take is certainly not a nail going to hanging up another gold star of presidential power, but instead one for the coffin.

The administration is obviously well into the realm of naked criminiality. It's long past time to have public televised hearings on their activities. Don't wait till after recess. Start them tomorrow morning so that the adminsitration can't create anymore mischief.

Bush is likely to be the first sitting president who is impeached and jailed.

As for his endlessly lieing defenders who miraculously stalk certain blogs, radio programs, and television shows: its time they were investigated.

Hey AL what is this, like the 5th line of defense in which someone deep in the message machine selective quotes something to make a completely fabricated point? Sensing a pattern here yet?

And the beauty of it the more you idiots do this
the more clear the groundwork becomes for an enterprising investigator to establish conspiracy charges. For you see when propaganda and its planned and organized dissemination serves to solely to aid and abet the coverup of criminal activity, people who knowingly spread it become accessories.

Hey Al, why are you wasting your time, do you and your buddies really think you're going to use a public relation push to get out of this mess?

Baby the more you pull these stunts the deeper you implicate yourself and the people you are trying to "defend".

"You see that he does NOT conclude that the president was with his rights to make these orders. All Sunstein is saying is that the AUMF gives him authority, but it's possible that the 4th amendment overrides that authority . . ."

From Sunstein's interview with Hewitt:

But now we're onto the last question, which is whether there's a Fourth Amendment requirement of a warrant. And the Supreme Court has never said that in circumstances like this. The lower court seemed to suggest otherwise.

" . . . and furthermore, down in the comments, he makes the point that though we can only speculate, the likely reason why Bush didn't seek FISA warrants is because the taps were outside of the scope of FISA (ie. he knew they were illegal, and was counting on being able to slip by in the grey area of the wording of the AUMF, and terrified americans wanting Bush to err on the side of caution to protect them from terrorists - irregardless of law)."

From the same interview:

Hewitt: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?

Sunstein: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

Finally, I don't see a Sunstein comment. Can you provide a link?

Bush is likely to be the first sitting president who is impeached and jailed.

During war? Dream on. Do you have any idea what the ramifications are? For the future credibility of this nations actions ANYWHERE in the world, not just geopolitical, but financial?

The ONLY way Bush will get slapped if it can be proven that he DID spy on Democrats (and not peace activists or gay rights groups).

I'd like to see that carcass dangling at the end of the treason rope (through a peaceful and legal process) as much as anyone. But I know damn well it ain't never gonna happen.

Stay focussed. '06.

If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

I did provide the link.

And if, as Sunstein claims in this interview, that FISA is preventing the president from doing what he did - then in my opinion, the burden is on the President to demonstrate decisively that there was some operational requirement of what he was doing, that made it so. I would also say that the burden would be on the President to make sure a legal framework was created that would fit whatever new operational requirements were present with this program.

Bush did neither of those. He just went ahead and did what he wanted. He says he informed congress "a dozen times" and that's not true - he did so once, perhaps twice (it's not clear) and only for a VERY loose definition of "informed". The parameters of that briefing were absolutely unacceptable, if Rockefeller's letter is true.

I don't think it's a slam dunk that this was legal at all.

Kevin - a substantial portion of Bush's base regards a significant slice of America as somewhat alligned with the enemy - the enemy is constantly changing. UBL yesterday, Cindy Sheehan today, Mrs. Tillman tomorrow,

Original intent only applies to the authors of the Constitution, where no one actually knows what their intent was. We rely on Scalia to look in his crystal ball for this.

When a law was passed last week, and if we don't know what the legislators intended, we can just *ask* them, original intent is irrelevant.

Because that's the way it is.

"I did provide the link."

Well, Al provided a link to the post. You provided a link to a comment by someone named ekf, not Sunstein.

But you said that Sunstein elaborated down in the *comments* -- and I didn't see a single comment by Sunstein. Moreover, the comment you attributed to him seems inconsistent with his statements on Hewitt's show. That's why I asked for a link to Sunstein's *comment* (as opposed to his blog post, which was linked).

"When a law was passed last week, and if we don't know what the legislators intended, we can just *ask* them, original intent is irrelevant."

Yeah, but they won't all say the same thing.

One thing we should remember is that the United States government and commander-in-chief cannot wage war against the United States and the people of the United States. The presumption that the Constitution is built upon is that the people have the right to overthrow and found government, and the government is a servant. Thus, there is obviously no power inherent in the Constitution that allows the president to conduct surveillance on American citizens as part of a war effort.

Now, on the other hand, should a specific American citizen be suspected of acting in concert or conspiracy with a foreign power, or terrorist organization, especially one in which the government is technically and/or effectively "at war" with, or even just acting criminally, then it would seem within the powers of the executive, as framed and limited by the 4th amendment (i.e. "reasonable cause"), to do surveillance on this specific individual.

Other than this specific case, nowhere in the Constitution or Bill of Rights, in letter or in spirit, is the federal government (let alone the commander-in-chief) given any power to perform surveillance on American citizens in their private spheres, whether there is a war ongoing or not against a foreign and/or domestic belligerent.

Now, on the other hand, should a specific American citizen be suspected of acting in concert or conspiracy with a foreign power, or terrorist organization, especially one in which the government is technically and/or effectively "at war" with, or even just acting criminally, then it would seem within the powers of the executive, as framed and limited by the 4th amendment (i.e. "reasonable cause"), to do surveillance on this specific individual.

But isn't that what Bush's surveillance program was all about? It is a program to intercept communications of people linked to Al Qaeda. Now, in practice, as another post of Kevin's argues,the definition of "linked" may be overbroad; I don't know the answer to that. But in theory, it seems that the program is designed to do just what Jimm described.

But isn't that what Bush's surveillance program was all about? It is a program to intercept communications of people linked to Al Qaeda. Now, in practice, as another post of Kevin's argues,the definition of "linked" may be overbroad; I don't know the answer to that. But in theory, it seems that the program is designed to do just what Jimm described.

If the government is truly targeting specific individuals, and their property, effects, and information (including communications), then there is likely no problem (aside from semantic issues about what denotes a worthy target).

If the government, however, is targeting a specific pool of private property, effects, and/or information, and data mining against it, and in the process of doing this indirectly targeting an arbitrary (if not random) set of individuals (citizens), then this is not okay, is not legal, is not constitutional, and is not even remotely close to a given power of the federal state (and the commander-in-chief).

And it matters not what the intent of the government is, since the very act of targeting property, effects, and information irrespective of the rights of the individual linked to and "owning" this property, effect, and information amounts to bugging one citizen's phone calls without cause or warrant in violation of the 4th amendment, only you're doing it to each and every person who is caught in the data mining dragnet.

There is no pardon because there is a collection - the collection merely means you have x number of units, i.e. citizens, who deserve their rights to be protected and secured by the government, their servant, and not violated and confiscated without cause, warrant, or compensation.

As some of you may be catching on, in some cases if we do not allow ourselves to be mystified (like by 'data mining'), and we remain focused on clarifying language and sounding out concepts, in a disciplined philosophical manner, what seems to be nebulous and/or ambiguous is nothing but, and common sense returns to the scene, and where there is thought to be controversy is really only confusion, perhaps intentionally sewn.

All bloggers should now refer to Bush as "King George". If this label sticks the Republican scum (the enemy within) might finally get embarrassed at their utter abuse of power.

Mad King George even better.

Well it appears Bush DID tell congress and they told Bush NO, so Bush went and did it anyway despite the fact that congress told him NOT TO DO IT.

Bush broke the law - and now it's impeachment time because Bush's data mining operation HAD nothing whatsoever to do with terrorist "related" activities and all that's left to verify it is an investigate.

The supposed "liberal" media is out there to systematically, categorically tell Americans that Bush needed this data mining operation to pursue what really is nothing but some other unrelated agenda.

It’s a mass media lie and being put on by corporate American as the un-opinionated news. Bush is nothing more than the presidental face of corporate American and not of we, the people, conservative leaning citizens or otherwise. As I've always said, Bush is not a conservative, he's white-collar criminal.

me: "I've been thinking today about the aid campaign that the Democrats should be running"

Jeeze, wake up and check in. Discover last night's Freudian slips.

Of course, that should be "ad campaign" not "aid campaign" even though we are trying to help.

They may have known it...but they don't give a damn!

There is nothing preventing Congress from today writing a law clarifying its position and expressly forbidding the President to engage in this kind of domestic spying without using the FISA process. The best debate I've seen so far on the entire issue was an online debate with Judge Posner on Washington Post.com. At the end of it, you could tell that even conservative Judge Posner, realized we were in a whole new area of law that really hadn't been thought about seriously. It isn't just terrorism involved. What happens to individuals when during surveillance the government hears information of probable criminal activity that doesn't involve terrorism, can that information be used in a criminal Court? What about the potential for blackmail and embarrassment with information gained from this kind of spying? Just think of the stuff everyone says in unguarded moments that can be used against them later on. Is it unreasonable for people to expect privacy when they use their telephone, cell phone or the internet? If you inadvertenly call someone who is a target does this make you a person of suspicion too? How long is a tagential person spied on? Whats done with the information at the end of the spy period? The questions go on and on. This is serious stuff that really needs to be addressed by Congress and experts in civil liberties and Constitutional law and not just looked at as polices that arised out of the war on terror. We have a strange set up circumstances here, conservatives, who by nature are suspicious of government power seem to be embracing domestic spying, liberals who believe in a strong executive are leery. Amazing.

PS..."irregardless" is NOT a word!

As I've always said, Bush is not a conservative, he's white-collar criminal.
Posted by: Cheryl on December 23, 2005 at 9:16 AM | PERMALINK

Republican Culture of Corruption!

Could you imagine Hillary with these powers!!?? OMG!!
"It takes a wiretap to catch a Terrorist"
By HRC
Another Best seller on the NY Times Best Seller list.

"Well it appears Bush DID tell congress and they told Bush NO, so Bush went and did it anyway despite the fact that congress told him NOT TO DO IT."

Oh but it was supposed to be kept covert so it's ok.

HAHAHANOT!!

Aline:

Conservatives are not suspicious of big government except when it's used to help the working and middle classes. All their rhetoric against big government is precisely that, rhetoric. They believe goernment should regulate private behavior and not economic activity, when in fact the Constitution provides for exactly the opposite.

"They believe goernment should regulate private behavior "

Both sides do. Thats why I always say. Repubs/Dems, two sides of the same coin.

Dancer,

Politely said and correct, but unless it is an abusive troll, please do not turn this site into dKos. Of course, folks constantly using "your" instead of "you're" does grate at times.

Refresh my memory. Is this AUMF what is also considered to have authorized the invasion of Iraq? Even though this AUMF is expressly limited to the perpetrators of the 9-11 attack against us?

During war? Dream on. Do you have any idea what the ramifications are? For the future credibility of this nations actions ANYWHERE in the world, not just geopolitical, but financial?

Holding accountable the one person who has done the most to undermine that credibility, thereby both incapacitating him from doing so further and deterring others from doing so in the future would do nothing by enhance the credibility of this nation.

Further, it would do much to restore the credibility of the idea that we work to spread to popular sovereignty through the rule of law, by demonstrating that our commitment, as a nation, to those ideals is real.

Is this AUMF what is also considered to have authorized the invasion of Iraq? Even though this AUMF is expressly limited to the perpetrators of the 9-11 attack against us?

No, they are two separate AUMFs.

There is nothing preventing Congress from today writing a law clarifying its position and expressly forbidding the President to engage in this kind of domestic spying without using the FISA process.

FISA already clearly prohibits, and makes criminal, any electronic surveillance not specifically authorized by statute.

FISA already clearly spells out the expansionn of executive power to perform electronic surveillance that comes with a declaration of war (a 15-day window where the President can do anything he wants in that regard without a warrant, in order, presumably, to provide a window of time in which the President can craft a legislative request for any specifically tailored additional authority needed.)

FISA already clearly spells out the conditions in which warrantless surveillance is allowed, and the notifications that must be made of such surveillance.

There is nothing to clarify here. The Executive Branch has simply decide to declare for itself new powers because, as Dick Cheney has said, they don't like the constraints imposed in response to executive abuses in the Vietnam and Watergate era.

"On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States.""

Does this equal invading Iraq? Was he trying to split the authority to invade Iraq through Congress on Sept. 12? If I'm reading this correctly, wow.

It also, to me, makes more sense now as to why they lashed out with all their might against the Dems in 2002 mid-terms. Daschle might have balked at Iraq, if he showed that kind of backbone Sept. 12, 2001. I'd always thought he'd have rolled over, so the mid-term result didn't matter in the broad scheme of things.

BREAKING - Fmr. Pres. Clinton requests Blowjobgate retrial based on newly discovered Article II powers

"We've all learned things from the Justice Department in the last few days. Turns out that my use of military force in Bosnia constituted a 'state of war'. Not only that, but during war, my powers as president were 'plenary'! If only I had known. One of those wartime superpowers was, apparently, a license to commit crimes in the US. Persuant to the Justice Dept memo, I declare that blowjob and all the lies I told about it to be activities in the pursuit of military victory in Bosnia. Man, I should've picked Gonzales instead of that namby-pamby Reno, coulda saved us all a lot of trouble."

Does this equal invading Iraq?

Its uses certainly would have included invading Iraq, they almost certainly would not have been limited to doing so.

cmdicely,

You are really going over the top. As you know it's not for Congress to decide what power the President has under the Constitution. That's for the Supreme Court. Nor can the Congress take away powers the President has under the Constitution nor can the President create powers for himself.

This program is not only legal but there isn't much they can do about it. The looney left can run around with their hair on fire all day long. There will not be an impeachment.

One has to feel for Tommy Daschle. He misses the battle and wants back in badly. The current leadership is so weak they even want him back badly. Alas, there's no spot for him. You could fire Dean but then in the Daschle v Bush elections Tommy has been getting his clock cleaned. It's rather rare for a former majority leader to get canned but Tommy managed. Like Max Cleland he just can't let go.

jimm,

Daschle's comments are utterly meaningless. No one in Congress can regulate Presidential power. Certainly not a failed politican. You're party lost 5 Senate seats in two elections under his leadership.

There is nothing to clarify here. The Executive Branch has simply decide to declare for itself new powers because, as Dick Cheney has said, they don't like the constraints imposed in response to executive abuses in the Vietnam and Watergate era.

Powers are only granted by the Constitution and verified by the courts Neither the Executive nor the legislature can declare new powers without amending the constitution.

Quite right about the desire to roll back the loss of Presidential authority in the Watergate and Clinton era. Bush and Cheney seek to restore Presidential power and are ready for this fight.

Holding accountable the one person who has done the most to undermine that credibility, thereby both incapacitating him from doing so further and deterring others from doing so in the future would do nothing by{ut} enhance the credibility of this nation.

Here's Europes credibility

From the London Telegraph's Anton La Guardia:

A wave of arrests across Europe has thrown new light on a European terrorist network being developed by Abu Musab al-Zarqawi, the most prominent insurgent in Iraq....

"Zarqawi thinks he is bigger than Iraq," a British source said. "He is spreading his tentacles in Europe. There is a sense that attacks are inevitable.

"Even before the invasion of Iraq, Zarqawi had a network in Europe that provided funds and recruits. The same pipeline will sooner or later pump the other way, from Iraq to Europe."

In France last week Nicolas Sarkozy, the interior minister, said that a sweep of 25 alleged Islamic militants and common criminals had broken up a terrorist network with links to Algerian and Chechen organisations and "indirect relations with al-Zarqawi"....

This week Spanish police arrested 15 people in raids across the country. Those detained are suspected of recruiting fighters for Iraq.

The USA has the credibility of fighting back and kicking ass. Al Qaeda understands credibility. They also understand survival. Thus they're heading to Europe. One has to feel sorry for those poor bastards in Old Europe. They know they can't buy these enemies off and they can't fight them for long either. With Islamic populations of 10% or more and growing rapidly, and feeling disenfranchised, Old Europe has a tiger by the tail.