FISA and the AUMF: Shows what I know

[Howard Gillman]

From: marty.lederman at comcast.net

> Much to my surprise, they're going entirely with the AUMF 
> argument, not the Article II override, as an explanation for why 
> FISA doesn't apply:
> 
> http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

On that, note Tom Daschle's piece in today's Washington Post.  You can read the whole thing at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/22/AR2005122201101.html, but here are some excerpts:

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps....

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.