presidents, war, and *statutes*
bobsheridan at earthlink.net
Mon Dec 19 09:26:53 PST 2005
"the AUMF impliedly repealed the well-wrought scheme in FISA,.."
Odd that there can be an implied repeal without a knowing, voluntary,
and intentional decision to repeal, either in the text or the
legislative history, such as in the case of a waiver of a
constitutional right in criminal court, but I suppose it could happen...
marty.lederman at comcast.net wrote:
> 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 That the AUMF impliedly repealed the well-wrought scheme in FISA, with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:
> *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 pro! perty seized by presidential
> fiat (also known as the Emancipation 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.")
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