presidents, war, and *statutes*

Bob Sheridan bobsheridan at
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"the AUMF impliedly repealed the well-wrought scheme in FISA,.."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 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 That the AUMF impliedly repealed the well-wrought scheme in FISA, with 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>
>     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.")
>     sandy
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