Update [2005-12-22 23:29:31 by Armando]:
Tom Daschle renders my analysis moot. No C-i-C authority within the United States granted by the AUMF. So much for Justice's house of cards.
The Justice Department has issued an absurd
defense of President Bush's authorization of warrantless electronic surveillance. As I have stated before, in the end, the argument necessarily boils down to arguing that the President, when acting as Commander in Chief, has
unchecked and unconditioned power. Rather than rehash my
previous arguments, I want to concentrate on the President's argument that the
September 18, 2001 Congressional Authorization to Use Force provided statutory authority for warrantless surveillance outside of the FISA process. Justice argues that:
Section 2511(2) of Title 18 provides . . . that . . . FISA and two chapter of Title 18 "shall be the exclusive means by which electronic surveillance . . . may be conducted." Section 109 of FISA . . . makes it unlawful to conduct electronic surveillance, "except as authorized by statute." . . . By expressly and broadly excepting from its prohibition electronic surveillance authorized by statute, Section 109 of FISA permits an exception to the procedures of FISA. . . . The AUMF satisfies Section 109's requirement of statutory authorization of electronic surveillance . . .
Could that possibly be correct? No. Let's consider first what Section 109 actually says:
Section 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally -
(1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not
authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. . . .
So the Justice Department is arguing that a section of FISA that declares unlawful domestic electronic surveillance a crime is a Congressional act authorizing electronic surveillance? That is singular. It seems to me that, at best, this argument can posit that domestic electronic surveillance pursued under the AUMF, assuming the AUMF did authorize such actions, is not a criminal act under Section 109 of FISA. It certainly can not be construed as authorizing such domestic electronic surveillance outside of FISA procedures. It provides for criminal penalties, not authorization for actions by the President.
The proper interpretation, assuming the AUMF did authorize domestic electronic surveillance, is that in addition to the domestic electronic surveillance authorized by FISA, pursuant to FISA procedures, the AUMF provided an alternate authorization for domestic electronic surveillance, but also pursuant to FISA procedures.
The best evidence of this is cited in the Justice Department letter - 18 U.S.C. Section 2511:
Except as otherwise specifically provided in this chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
There is no escaping this conclusion. This section states in unequivocal terms that unless the interception complies with the chapter, it is a crime. How to comply?
The criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]
Can Justice escape this logic? I'll discuss below the fold.
Justice says:
[U]nder established principles of statutory construction the AUMF and FISA must be construed in harmony to avoid any conflict . . .
I agree. But Justice continues the passage in dishonest fashion:
. . . between FISA and the President's Article II authority as Commander in Chief.
Come again? The conflict to be avoided is between the law duly enacted by Congress, FISA, and the Bush claim of unfettered Commander in Chief power? Say what? No, the conflict to be avoided is between AUMF and FISA! Justice cites a case, Zadvydas v. Davis. I presume Justice is referencing this:
"[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."
So what Justice is saying is that if FISA is interpreted as limiting the President's Article II Commander in Chief power, then it would be unconstitutional. Thus, it should be construed as permitting Bush's ordering of warrantless domestic electronic surveillance. And here we arrive again at the questions that can not be avoided -- Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief?
Like Cass Sunstein, Justice cites Hamdi v. Rumsfeld to argue that the Supreme Court recognized the AUMF as authorizing the President to invoke his Commander in Chief power. Like Sunstein, Justice ignores that the Hamdi Court also restricted the President's Commander in Chief power, making it subject to Congress' procedural scheme for processing petitions for writ of habeas corpus. So again this disingenuous argument is raised, and needs debunking:
It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?
Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.
But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:
All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law.
Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:
It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review.
Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.
Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.
It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.
If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?