The
Anonymous Liberal points to a great find by
Volokh Conspiracy, a
May 2005 law review article (it's a PDF) by Jack Goldsmith, one of the key Justice Department lawyers who reviewed the Bush NSA domestic surveillance program, and who is reputed to have
resigned in protest over it.
The highlights are identified by Anonymous Liberal who writes:
In this treatise-length article (85 pages, 376 footnotes)--which undoubtedly relies heavily on the research Goldsmith did while at the OLC--Goldsmith and his co-author, Curtis A. Bradley--another former Bush administration attorney--make a forceful case for a maximalist interpretation of the AUMF, one that gives the president the authority to exercise traditional war powers even on U.S. citizens within the United States. Indeed I doubt that a more expansive reading of the AUMF is even possible (at least while remaining intellectually honest).
Nevertheless, after reading the entire article, I'm not at all convinced that it can be reconciled with the arguments advanced by the DoJ in its recent white paper, a document which the Administration says merely rehashes the arguments contained in its internal legal opinions, the most recent of which was authored by Jack Goldsmith.
For instance, in the article, Goldsmith and Bradley notably stop short of suggesting that the AUMF could justify presidential actions which are expressly forbidden by other statutes, much less criminal statutes like FISA. And while they argue that the vague language of the AUMF should be construed expansively, they also caution that "a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States." In other words, if an action affects the liberty interests of non-combatants here in the U.S., Goldsmith and Bradley would require clear language in the AUMF authorizing it, even in the absence of a statute making such action specifically illegal. The NSA surveillance program almost surely affects the constitutional interests of non-combatants here in the United States, and the topic of surveillance was not even raised during the debate over the AUMF much less included in its language. And, of course, warrantless surveillance is specifically forbidden by a pre-existing law, FISA.
I'll discuss the Goldsmith article in more detail on the flip.
Goldsmith (with his co-author Curtis Bradley) argues that the best method of interpreting Presidential power in time of war is to consider the EXPRESS authority granted the President by the Congress because "Presidential actions in wartime without express Congessional authorization . . .
lack a presumption of valdity" and "
constitutional avoidance counsel in favor of looking at Congressional authority" due to the fact that the most difficult Constitutional questions arise in the murky area of the "inherent authority" possessed by the President as Commander in Chief.
These are remarkably astute observations by Goldsmith and turn the "constitutional avoidance" issue, used by Alberto Gonzales and first floated by Cass Sunstein, on its head. Thus, while Gonzales and Sunstein argue that FISA and the AUMF must be interpreted in a manner to avoid Constitutional conflict, Goldsmith goes them one better - Bush's action should be viewed as circumscribed by Congressional action because to do otherwise opens an even bigger can of worms.
Goldsmith and Bradley spend a great deal of time considering what it is Congress authorized when it adopted the AUMF. They focus on Hamdi v. Rumsfeld, and note that the Supreme Court expressly stated that the power of detention granted to the President by the AUMF was limited to enemy combatants captured on the battlefield and did not address other detentions or any other Presidential actions.
But Goldsmith and Bradley choose Hamdi as the starting point of their discussion on the AUMF.
The article is long and I think it gives a lot of fodder for a number of diaries, but the one thing that struck me was that Goldsmith and Bradley emphasized that the AUMF empowered the President to act against "covered enemies" and no one else.
The dispute about the President's domestic surveillance program is very much about NON-covered enemies! As the Democratic Senators pointed out numerous times, there can be NO objection to surveillance against Al Qaeda and its operatives anywhere. Indeed, detention and capture would be the end game objective one would think.
The problem is surveillance of NON-covered persons - like American citizens for instance.
The other insurmountable problem is FISA - which provides for surveillance by the Executive when a warrant is properly issued by the FISA court. FISA also expresses in blunt and unmistakeable terms that it and Title III are the exclusive means for authorization of domestic wiretapping. See, e.g., this.
The bottom line is the Bush Administration is not even in the ballpark on the law. Their actions are clearly illegal and clearly violate Congressional prohibitions on domestic surveillance without a warrant issued pursuant to law.
At this point, only a simpleton or a shill could state otherwise.