On September 18, 2001, Congress passed the Authorization for Use of Military Force Against Terrorists. Some call it "the AUMF"; I will refer to it as the AUMFAT.
On October 10 and 11, 2002, the House and Senate passed the
Authorization for Use of Military Force Against Iraq Resolution of 2002. Some call it the Iraq War Bill; I will call it the AUMFAI.
On September 22, 2008, Congress will consider a bill to grant extraordinary powers to the Treasury Secretary to bail out financial services institution.
Our experience with the first two resolutions explains why we cannot enact the third in anything like its proposed form. The Bush Administration cannot be trusted. It will take any ambiguity in such a bill and use it to justify Abuses of Executive Power.
We need to vote it down now , not because we're anti-Wall Street, but because Bushites cannot be trusted with such power.
This diary compares the wording of the previous Authoritzations to Use Military Force with the wording of what we might call the Authorization to Use Administration force, and how the history of the former shows why we can't support the latter.
The 2001 AUMFAT
The 2001 AUMFAT is, in its entirety, as follows:
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1 - Short Title
This joint resolution may be cited as the 'Authorization for Use of Military Force'.
Section 2 - Authorization For Use of United States Armed Forces
(a) IN GENERAL- 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.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes (sic) any requirement of the War Powers Resolution.
Speaker of the House of Representatives.
Vice President of the United States and President of the Senate.
Here is some of what the Bush Administration did with this grant of power:
* established military commissions at Guantanamo Bay that it asserted were beyond Congressional control
* attempted to suspect habeas corpus
* justified rejecting the Geneva Conventions and putting the U.S. on record as de facto embracing torture
* justified electronic surveillance without obtaining a warrant of from the FISC (FISA Court) as required by the Foreign Intelligence Surveillance Act (FISA) of 1978.
That's right -- the amount of structural damage to Constitutional rule in those few words generated at least four separate constitutional crises. The supposed ambiguity in the bill lay in terms such as "necessary and appropriate force," or "determines," or "aided" -- actually, the story has never been that clear, or that consistent. But from some minimal ambiguity did the most critical Supreme Court cases of the early 21st century derive -- with up to four votes on the wrong side.
The 2002 AUMFAI
The 2002 AUMFAI is too long to include here in full. In most relevant parts, though, it authorized the President to use the United States Armed Forces
"as he determines to be necessary and appropriate ... [to] defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq."
and
required a Presidential Determination that, preferably before such an attack that
"(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
"(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorist and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."
Like the previous AUMF, it explicitly stated that nothing within it "supersedes any requirement of the War Powers Resolution." The Bush Administration -- arguing that the War Powers Act was a dead letter and had no requirements, didn't care about that.
We all know the bloody, expensive and damaging abuse of power that followed that resolution. I would note one lesson of the Iraq War, though: if they're starting with a request of $700 billion, we can assume that the final figure won't be a mere $1 trillion, but perhaps several trillions.
The Paulson trial balloon
Now comes, what shall we call it, the [http://www.dailykos.com/story/2008/9/20/132020/495/381/604752 "Authorization to Use Administrative Force Against Economic Consequences?" "The Authorization to Overpay for Toxic Mortgage Debt From Financial Institutions With Taxpayer Money"? (We'll need something catchier.) What language do we find here?
Well, according to the leaked trial balloon, we find:
Sec. 2. Purchases of Mortgage-Related Assets.
(a) Authority to Purchase.–The Secretary is authorized to purchase, and to make and fund commitments to purchase, on such terms and conditions as determined by the Secretary, mortgage-related assets from any financial institution having its headquarters in the United States.
(b) Necessary Actions.–The Secretary is authorized to take such actions as the Secretary deems necessary to carry out the authorities in this Act, including, without limitation:
(1) appointing such employees as may be required to carry out the authorities in this Act and defining their duties;
(2) entering into contracts, including contracts for services authorized by section 3109 of title 5, United States Code, without regard to any other provision of law regarding public contracts;
(3) designating financial institutions as financial agents of the Government, and they shall perform all such reasonable duties related to this Act as financial agents of the Government as may be required of them;
(4) establishing vehicles that are authorized, subject to supervision by the Secretary, to purchase mortgage-related assets and issue obligations; and
(5) issuing such regulations and other guidance as may be necessary or appropriate to define terms or carry out the authorities of this Act.
Sec. 3. Considerations.
In exercising the authorities granted in this Act, the Secretary shall take into consideration means for–
(1) providing stability or preventing disruption to the financial markets or banking system; and
(2) protecting the taxpayer.
People have tended to quote Section 2 without Section 3 here. I include the latter to point out what's coming. Don't worry, we'll be told, "he has to protect the taxpayer." No, he doesn't. He is supposed to take it into consideration -- a violation of which provision can never be proven -- and can do what he damn well pleases. Under another President, we might expect that a Treasury Secretary would perform honorably -- though even that would set a terrible President for some future Bush-like figure. But, no insult to Secretary Paulson here, we cannot ever assume fairness and a light hand of someone acting under President Bush. He's made that very clear over the years.
The prospects for abusing a bill such of this are rococo compared to those present in the AUMFs. Bush's lawyers would not even have to break a sweat.
"... on such terms and conditions as determined by the Secretary ..."
"... authorized to take such actions as the Secretary deems necessary ..."
The contracts clauses. Plenary authority over hiring and to issue debt. And let's remember, the former head of Goldman thinks that these Wall Street geniuses are actually pretty spiffy. Who's he going to hire to plan his program? It's not going to be Paul Krugman and Dean Baker. It's going to be people like Alan Blinder, who said yesterday:
"It’s easy to forget amid all the fancy stuff — credit derivatives, swaps — that the root cause of all this is declining house prices," Mr. Blinder said. "If you can reverse that, then people start coming out of their foxholes and start putting their money in places they have been too afraid to put it."
That's right -- people who think that the effect is the cause, people who think that the problem with the housing bubble is that it popped. People who are fundamentally -- through delusion or cupidity -- out to turn right around and going back to placing bets on the public's dime.
Another area that rightly captures people's attention is:
Sec. 8. Review.
Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.
I don't know that that would actually stand up in court, since taken literally it would allow Secretary Paulson to reinstitute chattel slavery if he deemed it necessary to get the job done and no court would have jurisdiction to review it. But it's still awfully and unnecessarily bad.
Be ready for a counterargument, though. Many commenters are saying that this gives Bush himself a great deal of authority. They haven't studied Administrative Law. That "committed to agency discretion" underlines (1) that the Treasury Secretary's interpretation of an ambiguities in the law receives what is called "Cheveron deference" from the courts (the name derives from a famous Supreme Court case) and that (2) the agency head, Paulson, rather than the President, calls the shots. (So much for the "Unitary Executive," perhaps, but that is for another day.) The President can fire Paulson, but he can't control his actions otherwise – much as with Congress and impeachment and removal of the President. So expect to hear people say "this isn't Bush! Paulson is completely independent!" To that I say: the Bush Administration has also made it clear, based on countless visits from Cheney, Addington, etc., that independence of Administrative agencies is not to be trusted. If they want Paulson to do something, they'll just blackmail him with the threat of finding an Acting Secretary who will do what they want.
Because I've already written one diary on funding this bailout, I was interested in this, though:
Sec. 7. Funding.
For the purpose of the authorities granted in this Act, and for the costs of administering those authorities, the Secretary may use the proceeds of the sale of any securities issued under chapter 31 of title 31, United States Code, and the purposes for which securities may be issued under chapter 31 of title 31, United States Code, are extended to include actions authorized by this Act, including the payment of administrative expenses. Any funds expended for actions authorized by this Act, including the payment of administrative expenses, shall be deemed appropriated at the time of such expenditure.
Chapter 31 of Title 31 includes 31 U.S.C. 3101-3113 (Borrowing Authority) and 31 U.S.C. 3121-3130 (Administrative). I hope that no one who votes on this bill hasn't had a competent staff member read them carefully -- for ambiguity.
One possible short-term solution
I might favor something like the proposed Paulson bill, in the very short term, under one set of conditions. If the situation is as grave as they say, this should be taken as a serious proposal.
(1) Nancy Pelosi would resign the Speakership (temporarily)
(2) A figure who could be trusted to ensure tha the powers found in the bill would not be abused -- maybe Paul Volcker, maybe Warren Buffet, maybe even a repentant Jim Leach -- would be appointed Speaker.
(3) Bush and Cheney would resign their positions.
(4) The new Speaker would become President, his or her Treasury Secretary would be approved without debate, and they would begin work in earnest.
We could have this proposal implemented by Tuesday. Short of that, no dice. Try again.
UPDATE: Forgot the obligatory mention of Naomi Klein's "The Shock Doctrine," which as many have observed describes what is happening to a T.