Mike the Usurper wrote:

Gonzales said that while FISA prohibits eavesdropping without court approval, it makes an exception where Congress "otherwise authorizes." That authorization, he said, was implicit in the authorization for the use of military force in Afghanistan following the Sept. 11 attacks.

If someone would like to explain how NSA doing wiretaps is use of military force, this argument would have a better chance of floating.

The argument is that military actions involve communications intercepts, and so this is just as much the use of force as, say, capturing POW's and transporting them to Cuba, which the administration successfully argued was covered by the AUMF. Congress clearly authorized the President to intercept battlefield communications in Afghanistan. Congress clearly understood that some Al'Q people where in the USA and some might be US citizens....

But, there are problems. The opinion on whether the AUMF covered long term detention of combatants was not unanimous by any means. Conservative lawyers have argued that these intercepts might not be covered. Furthermore, perhaps without considering the implications of this, the Administration had Congress modify the FISA rules in the Patriot Act. This clearly sends a signal that Congress intended those rules to be in effect. Clearly the FISA court has been used for some intercepts. Its really not clear where the Administration determined the line was. (The troubling thing is that the likely answer to that question is that stuff the FISA court would approve got sent to FISA and the other stuff didn't.) It seems difficult to me to accept that domestic civil liberties were lifted by the AUMF without explicit mention from Congress. This is the point Scalia raised in the Hamdi trial that I found resonated with me. Its a big damn assumption.

Frankly, the line is anything but clear. I do not think the Administration should be taking a hard line with Congress about what Congress did or did not authorize. They've also argued that these intercepts are Constitutional regardless of FISA, which is a big line in the sand as it essentially argues that Congress did not have the right to establish FISA in the first place. This is a radical legal position that is very vulnerable. If I were the President I'd have addressed this in a more conservative way, explaining that my lawyers agreed that this was OK due to the AUMF and allowing that the matter will be reconsidered with broader Congressional outreach.

Declaring war on Congress, while simultaneously exclaiming that the dialog itself threatens national security, has the paradoxical effect of raising the profile of the issue, requiring Congress to react, and making you look like you're trying to cover up a crime by shaming people for discussing it openly. This doesn't seem like a shrewd reaction, and it leaves Congress with little choice but to drop the matt... [ Read More (0.2k in body) ]

Anyone reading this should read Decius' original post in full... I'm excerpting...

Decius wrote:

Congress clearly authorized the President to intercept battlefield communications in Afghanistan. Congress clearly understood that some Al'Q people where in the USA and some might be US citizens....

Exactly. And exactly why this "war" is so dangerous. There's no well defined "battlefield" and even the "enemy" is rendered without clarity, somtimes painted in very broad strokes. I don't deny that terrorists operate in a way that's fundamentally different from the way other enemies operate. To me, though, that only demands that we be *even more careful* about the way we prosecute the war.

What the hawks and warlords and lazy conservatives seem to miss or ignore is that the terrorists' OBJECTIVE is not the same as any other enemy. They're not in this for land, or money. They're in it to demolish OUR IDEALS. Privacy, freedom of speech and religion, the entire list we hold so dear. Every time our leaders spy on us, or detain a citizen without due process, they're handing victory to our enemies.

But, you hear people say, if we *dont* do that, then our enemies can kill us and then they still win! But they don't do they. The way a terrorist wins is by instilling TERROR. They win by making you change your way of life to suit the fear that they've put into you. If I have to die in a terrorist attack because I and my countrymen were not afraid to live in a free nation where our government is not given any authority it wants, then I will consider my life well spent. We win this "war" on terror by NOT BEING AFRAID to be Americans, by not giving up one iota of freedom in the pursuit of an enemy that is ultimately in our minds, more than they are in our cities.

Frankly, the line is anything but clear. I do not think the Administration should be taking a hard line with Congress about what Congress did or did not authorize. They've also argued that these intercepts are Constitutional regardless of FISA, which is a big line in the sand as it essentially argues that Congress did not have the right to establish FISA in the first place. This is a radical legal position that is very vulnerable.

They're flailing, and there's no other word for it. If it's constitutionally supported, then that'd be the argument. If it was authorized by the AUMF, then that'd be the argument. Since it was authorized by NOTHING, they're spinning and playing the Confuse and Confound game. As usual. As you say, this puts congress in a delicate position, and the outcomes are all somewhat frightening. I say Bush won't back down, and he won't be impeached. His numbers will tumble back to their recent lows (they're up again after all the victory speeches) and Congress will speechify, but I'm so cynical anymore that I don't see any permanent censure coming down.

If I w... [ Read More (0.2k in body) ]