presidents, war, and *statutes*

[Harry Pohlman]

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?
>
> sandy
>
> 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:// 
>>> 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 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.")
>>>
>>> sandy
>>>
>>>
>

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