presidents, war, and *statutes*
pohlman at dickinson.edu
Mon Dec 19 13:05:26 PST 2005
i think it would be a bit formalistic to say that only a Declaration
of War could trigger the law of war since a Declaration and an
authorization of the use of military force go through the same
process. treaties and executive agreements obviously don't, hence
the controversy. in short, i am not convinced that the Court was
right when it concluded that the AUMF set aside the Non-Detention
Act, but i find it more plausible to say that it did than to say that
the AUMF made an exception to FISA. H
On Dec 19, 2005, at 3:33 PM, Sanford Levinson wrote:
> So under this reading of the AUMF, is there any juridical
> difference between an "authorization for the use of military force"
> and a "declaration of war"? If the answer is no, as seems
> suggested, then is this just another example of Ackermanian non-
> Article V amendment, so that authorizations:declarations of
> war::executive agreements:treaties, i.e., simply left up to the
> complete and unfettered discretion of the president and Congress as
> to what to call them? Is there any function left to the
> Declaration of War Clause?
> From: Harry Pohlman [mailto:pohlman at dickinson.edu]
> Sent: Monday, December 19, 2005 3:23 PM
> To: tushnet at law.georgetown.edu
> Cc: marty.lederman at comcast.net; Sanford Levinson; Stephen L. Wasby;
> Conlawprof at lists.ucla.edu
> Subject: Re: presidents, war, and *statutes*
> yes, but an authorization for the use of military force arguably
> triggers the law of war, which traditionally recognizes a right to
> detain enemy combatants, presumably including citizens. is it as
> clear that the law of war triggers the right to spy on citizens? i
> don't think so. that leaves the Commander-in-chief override.
> what is troubling is that the FISA Court of Review in 2002 did seem
> to recognize the lawfulness of warrantless surveillance for
> national security purposes.
> Harry Pohlman
> Dickinson College
> On Dec 19, 2005, at 2:31 PM, Mark Tushnet wrote:
>> Note, though, that Hamdi held that the AUMF was sufficient to
>> count as authorization for detention of citizens, as required by a
>> statute that seems to me more explicit in its requirements for
>> subsequent congressional authorization than FISA (that is, the
>> issue under FISA is the ordinary one of whether a later enacted
>> statute impliedly repeals -- in part -- an earlier one, whereas
>> the issue in Hamdi was whether the AUMF was sufficient to count as
>> the authorization purportedly required by the anti-detention act).
>> 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: http://
>>> 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
>>> "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 sei.
>>> 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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