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 matter and accept a new limit to their power, or impeach and litigate. The ironic (and probably broken) thing is that if they did impeach in order to litigate the matter the Senate would end up in the position of determining whether or not it has certain limits to it's own power. These seems an actual flaw in the checks and balances system. The Supreme Court ought to be arbitrating this dispute, but there is no way to reach them unless an actual victim of the surveillance could be identified. Not bloody likely.

Any way you cut it, this is a clusterfuck. Either Bush backs down, or he gets impeached, or FISA is essentially dead and the NSA can do domestic surveillance, and we're probably due for a Constitutional amendment dropping the word "unreasonable" from the 4th amendment. Many people are not going to get why we need checks and balances when there are actual terrorists running around. (Few recall, for example, the completely innocent people whose lives were destroyed by the English authorities when civil liberties were curtailled in the 1970's after IRA bombings...)

I was somewhat releived to see the Administration rapidly defuse the matter of Padilla, by finally charging him, when the 4th circuit handed them everything they wanted with respect to enemy combatants on a silver platter in an extremely illogical decision that essentially granted them carte blanche. Even the Administration didn't want that precident to stand. They won and then prompty gave up rather then allowing the 5th amendment to stand permanently eviscerated. This matter seems to have quickly come to a head, with Congress and the President staring eachother down on fundamental matters of authority. Its a fucking Constitutional chicken match! I have to wonder if the DOD lawyers dealing with Padilla aren't a bit more savvy then the people running the political side of the government.

RE: Bush Defends Eavesdropping Program