In case you could not guess from the title, my GOD this is some bullshit lawyering that Alberto Gonzales is trying to pull! You don't have to be an attorney (I am one) to see what's going on here. Gonzo is attempting to place the monkey on Congress' back in a real Texas lawyer two-step--aka the old double-(cowboy) bootstrap. Just use some common sense for a moment.
Abu Gonzo has evidently said in testimony to Sen. Joe Biden that
[O]bviously if Congress were to take some kind of action, and say the president no longer has the authority to engage in electronic surveillance of the enemy, then I think that would put us into the third part of Justice Jackson's three-part test, and that would present a much harder question as to whether or not the president has the authority.
What Gonzo is really doing is not just dodging the core question but eliminating it. He does this by saying, if Congress has the authority to stop this program any time it wants, its implicit that the President has authority the to start the fucker in the first place. So piss off.
What gores the HELL OUTTA ME is that no one will challenge the idea of whether the U.S. is at war AS THAT TERM IS LEGALLY INTENDED. For troglodyte Republican readers, let me go over it really slow (see, I'm even key-stroking slowly): Yes, America is at risk. Yes, Americans are under threat. Yes, Americans are in danger, BUT IT IS NOT WAR IN THE LEGAL SENSE REQUIRED TO EVEN TRIGGER THIS NONSENSICAL, LAND-OF-OZ DISPUTE OVER THE PRESIDENT'S WAR POWERS BECAUSE NONE ARE IN EFFECT!!!
If Congress had meant "threat," "danger," "duress" or any other generic term for dire adversity (such as "dire adversity" for example) it would have used those words in its various statutes that use the term "war." After all, in the "War Powers Act" Congress used the term "national emergency" which itself has specifics about how it is declared, how it is lifted and what rights and responsibilities it entails, and I don't think going up the spectrum on DHS' goofball color bars qualifies.
But when used in a statute like FISA and the War Powers Act, a word like "war" has a precise legal meaning. Just go to Black's Law Dictionary and you can find half-dozen shades of it, and I have no doubt that you could build a cozy bunker with the research papers, books and articles that have been written about the lawful condition of war and its legal consequences. Criminy, being "at war" has all kinds of meanings and implications beyond just FISA and the War Powers Act, whether it's in insurance, maritime law, salvage, money and finance, force majeure, and, oh yes, the Bill of Rights. Better be ready to "quarter soldiers in your home" since we are no longer "in time of peace" (Remember that pesky old Third Amendment? Why bother with bases and barracks!). There's probably any number of other things I'm just too angry to list right now.
Is there anybody else out there who fucking gets this? Maybe even some bumbledick Democrats in Washington??? I don't seem to recall that there has ever been a Congressional declaration of war "in this post 9/11 world," only authorizations to use force. Ask yourself, with whom would we be at war? Clearly we are not at war with Iraq or Afghanistan though things started out that way. We responded to 9/11 by attacking the Taliban and the country of Afghanistan. Nothing wrong there. And we won. So that adventure, legitimately termed a "war" between the U.S. and another nation, is over.
How about Iraq? Congress authorized the President to use the military to enforce U.N. resolutions upon Saddam Hussein because he was such a threat, right? Put aside the fact that it was all total horsehockey, and the fact that even this action had all the legality of Scotland Yard arresting Ken Lay in Romania for U.S. income tax evasion. Saddam is gone. "Mission accomplished." So both Afghanistan and Iraq are our buddies now. We are those nations' "security," playing Syria to their Lebanon at best, or Israel to their Palestinian Territories at worst. So no war over there in the legal and legislative sense, right?
Who or where else, then? Well, the President was authorized by Congress to use military power to take the fight to Al Qaeda. This does not meet the definition of "war" as I see it used in the law nor am I aware of a declaration of national emergency with respect to Al Qaeda. Remember when we all were told we faced a "unique" threat? Remember that it was also compared to use of force against the threat presented by the Barbary Coast pirates generations ago? Again, put aside your disbelief that Al Qaeda can be both unique and with precedent (unless you are a total idiot like Bush) but in either case, it was the purpose of Congress' special authorization of force in this circumstance and passage of the Patriot Act that were intended to fill gaps in our security against an identifiable, multinational private enterprise that was in the position of using deadly force on large segments of the American populace but not a proper subject for the declaration of "war" (whew--long sentence). There's a word for that; it is called "terrorism."
Let the Administration get away with calling "war" when we are NOT at war with Iraq, Iran (yet), Afghanistan, or any other country but IN CONFLICT with and AT RISK from a well-funded terrorist organization for which there were both existing and special legislative accommodations, and you've already handed those bastards home court advantage. If we can't correct this fundamental jump-off point, all we are doing in our discussions is promising that we will exercise more while we are plunging off the Brooklyn Bridge.
Ironically, the laws that gave Mr. Bush whatever authority he claims should, under a truly conservative brand of jurisprudence, be strictly, or at least very carefully construed, due to their high potential to curtail Constitutional rights and violate international law if abused (whoa, think THAT could happen???). Otherwise a judge would be "legislating from the bench." If Justice (acchh!) Alito is willing to write the White House a blank check of authority anytime America faces a serious threat, no matter what the law says, we should simply reconstitute Congress as an advisory body. In fact, after that first so-called "war powers" decision with Alito probably writing for the majority, we don't even need a federal court system. We will have found that the federal government becomes a unitary exercise, assuming Americans are nervous enough and the fantasy of a perpetual war can be maintained.
If Congress does not stop it here and now, it will not be stopped and stopping it should begin with SOME DAMN BODY attacking that fundamental, but hugely unpopular question, "Are we at war in the legal sense?" Until then, we are all pretending not to see the dead moose in the middle of the dinner table and debating "war powers" that do not even enter into the equation.
Besides, if Gonzo's all they got, BRING `EM ON!!