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My Left Wing.
Cass Sunstein has a take on the warrantless surveillance ordered by President Bush that sadly misses the point:
The authorization for the use of military force (AUMF) says, "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."
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
This brief statement does not answer several other questions, including (a) whether, as the Attorney General also contends, the President has inherent constitutional authority to engage in this kind of wiretapping (authority he does not need if the AUMF is sufficient), (b) whether specific statutes negate the authority that the AUMF appears to give (as Senator Feingold has argued -- an argument that in some tension with Hamdi), and (c) whether there might be a possible Fourth Amendment barrier to these wiretaps (a barrier that might remain even if the AUMF provides authorization, see Hamdi on due process limits on the power to detain).
With all due respect to Professor Sunstein, he apparently didn't finish reading Hamdi:
All agree that, absent suspension, petition for writ of habeas corpus 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.
. . . 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.
. . .[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, but most assuredly envisions a role for all three branches when individual liberties are at stake.
Yes, Professor Sunstein is right, through the Afghanistan War Resolution, Congress authorized the President, acting as Commander in Chief, to detain enemy combatants. But this authorization was NOT unfettered. It remained subject to the habeas corpus petition rights, UNLESS the Congress suspended such rights, and to the procedures established by the Congress.
It is absurd for Professor Sunstein to argue that Hamdi can support the President's argument when Hamdi clearly establishes that the President's war power is subject to Congressional restraint. In Hamdi, it was the President's power to detain enemy combatants that was made subject to Congress' decisions on habeas corpus. On warrantless surveillance, the President's power, if it exists, is subject to FISA.
More on the flip.
A commenter to Sunstein's post,
Al Alschuler, says it well:
As revised after -- I said after -- 9/11, FISA comprehensively regulates wiretapping to gather foreign security intelligence. Under this statute, the Attorney General may in some situations authorize wiretapping without a court order for as much as a year, provided no "U.S. person" is likely to be overheard. A court may approve the wiretap of a "U.S. person" simply on a showing of probable cause to believe that the target of the tap is an agent of a foreign power (a term defined to include not only Al Qaeda and other terrorist groups but also any foreign political organization). If an emergency precludes going to court, the Attorney General may wiretap for as much as 72 hours without a warrant. An official who wiretaps without statutory authorization is guilty of a felony punishable by as much as five years in prison.
When Congress approved the AUMF, it meant to authorize the war in Afghanistan. The Supreme Court concluded in Hamdi that it also meant to authorize our forces to capture enemy combatants within Afghanistan and hold them as prisoners. Surely, however, no one in Congress imagined that its resolution would amend FISA or authorize the President to abandon this statute's comprehensive scheme regulating the wiretapping of U.S. citizens inside the U.S. The President's argument that the AUMF authorized scrapping FISA is ludicrous, as is his argument that he needed to scrap FISA because sometimes there isn't enough time to go to court, as is his argument that blowing the whistle on his felony will tip off the enemy to the fact that they're being overheard and thereby endanger American lives. Some issues are easy, and lawyers who care about the rule of law ought simply to denounce the criminal in the White House.
The President has one argument and one argument only - he has unfettered power when acting as Commander in Chief. If this is so, we need no Patriot Act, we need no FISA. We need no laws.
We are electing Kings.