presidents, war, and *statutes*

[marty.lederman at comcast.net]

Both of the Administration's arguments here are quite radical:  (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others on the list will disagree.

But for now, I simply wanted to note this:  If the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided:  After all, the President already has the authority, under the AUMF and Article II, to do virtually everything the PATRIOT Act authorizes -- which means that the PATRIOT itself was largely superfluous in the first instance.



Original message -------------- 
From: "Sanford Levinson" <SLevinson at law.utexas.edu> 

This just in from the Wasington Post:  http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121900211.html  

 Gonzales Defends Eavesdropping Program
Congress 'Authorized' Domestic Surveillance in Iraq War Resolution, Claims Attorney General

By Fred Barbash and Peter Baker
Washington Post Staff Writers
Monday, December 19, 2005; 10:48 AM

Attorney General Alberto R. Gonzales this morning defended the Bush administration's domestic eavesdropping operation, saying it derived its legality from the congressional resolution permitting the use of force to fight terrorism in the wake of September 11, 2001 as well as from the "inherent powers" of the president as commander in chief....  "There were many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.
"We also believe the authorization to use force that was passed by the Congress . . . constituted additional authorization for the president to engage in this kind of signals intelligence." ....
Speaking on CBS this morning, Gonzales also said that the Foreign Intelligence Surveillance Act was outdated. "We've had dramatic changes in technology. And we are confronting a new kind of enemy and a new kind of war, and we need to have the speed and agility and utilize all the tools available to this president in confronting this enemy," he said....
Sen. Feingold responded to Gonzales' comments in an NBC interview: "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.
Democrats and Republicans called separately yesterday for congressional investigations into President Bush's decision after the Sept. 11 terrorist attacks to allow domestic eavesdropping without court approval.
"The president has, I think, made up a law that we never passed," said Feingold.
Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, said he intends to hold hearings. "They talk about constitutional authority," Specter said. "There are limits as to what the president can do."

So isn't the question clearly joined:  Under the Yoo-Paulsen reading of the Commander-in-Chief (and Oath) Clauses (and I assume that the Attorney General is drawing his constitutional theory from Yoo and Paulsen), are there "limits as to what the president can do," at least with regard to those the president deems to be "enemies" (even if US citizens) so long as he/she is making a good-faith effort to prosecute something the president defines as a war (even though Congress did not formally declare war)?  Paulsen does not, incidentally, defend Truman's seizure of the steel mills because, among other things, the owners were not "enemies," unlike, say, each and every resident who owned a slave within the unconquered Confederacy (whether or not there was a scintilla of evidence that the slaveowner actually did anything to support the presumptively treasonous insurrection), who could indeed have his or her lawful property seized by presidential fiat (also known as the Emancipatio!
 n Proclamation).  
Obviously, there is also a question of statutory interpretation re the AUMF.  But I think it's telling that Gonzales is basically going straight to "inherent powers" and the "right" of the president simply to ignore laws that are "outdated" or "quaint" (as with the Geneva accords).   I keep emphasizing Carl Schmitt as the central figure in this discussion.  But one can also go back to John Locke and his theory of "prerogative"  The point is that this is a far cry from the notion of "limited government and assigned powers," unless one simply reads the Commander-in-Chief Clause as an assignment of de facto unlimited power so long as certain magic words ("enemy," "war," and "commander-in-chief") are said.  (Of course I am aware that contemporary Federalists think that only Congress is "limited" in what it can do, since Article II doesn't contain the magic words "herein granted.")
sandy
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