In this morning's interview with Katie Couric
on the Today
show, Couric asked Attorney General Alberto Gonzales what authorized the President to conduct warrantless spying on Americans. Gonzales trotted out the "inherent authority" excuse, one that has been effectively shattered by Armando here
. But then he also said that the President also was authorized by Congress to commit this act. Specifically, he said that Bush was granted this power under the authorization for war
. I presume he was talking about the Authorization for War passed on September 14, 2001.
Having scoured the authorization (read it here) I can't find anything that would grant the President the power to skirt the Foreign Intelligence Surveillance Act. Was Gonzales referring to the fact Congress gave the President the authority to use "all necessary and appropriate force" to combat terrorism? But the word "force" there is invoked with respect to the use of military force. And even if in GonzalesWorldTM "force" includes spying just like "torture" excludes almost everything short of death, Congress added the phrase "necessary and appropriate" precisely because it intended to restrict the President to the confines of the law.
So the "resolved" clause is out. What other aspect of the authorization gives the President the right to ignore the 4th Amendment and the centuries of case law supporting it? Was Gonzales referring to this?:
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...
If he was referring to this clause, he should have his law license revoked. Because it is a basic tenet of statutory construction that "whereas" clauses have no binding legal effect. Professor Glennon testified to the Senate that these specific "whereas" clauses have no legal effect back in 2002:
How much authority does this statute confer upon the President to use force in prosecuting the war against terrorism? Note at the outset that the statute contains five whereas clauses. Under traditional principles of statutory construction, these provisions have no binding legal effect. Only material that comes after the so-called "resolving clause"--"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled"--can have any operative effect. Material set out in a whereas clause is purely precatory. It may be relevant for the purpose of clarifying ambiguities in a statute's legally operative terms, but in and of itself such a provision can confer no legal right or obligation.
Let's step back into GonzalesWorldTM for a second and assume that his argument is operative; he says this clause recognized that the President has unfettered power under the Constitution to skirt the law and order warrantless spying. But the Constitution mandates that the President preserve and defend the Constitution--which includes the Fourth Amendment and its protection against warrantless searches and seizures.
Naturally, being the stellar "inteviewer" that she is, Katie Couric failed to ask Gonzales any follow-up questions. But at least Gonzales named a statute--as opposed to Condoleeza Rice who fumbled and squirmed when Russert asked her the same this weekend. Unfortunately, the administration's attempt to blame Congress falls flat on its face.
But let them keep talking about it. The more this administration trys to defend Bush's actions, the more ludicrous they sound. Take Dick Cheney, for instance. He claimed yesterday that had these wiretaps been in place earlier, 9-11 could have been prevented. Of course! Illegal wiretaps would have prevented 9-11, not acting on a certain memo entitled "Bin Laden Determined To Attack In US."
-- Feingold Responds
Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States.
"There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution.
"The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.).