"ALL CAPS IN DEFENSE OF LIBERTY IS NO VICE."

Tuesday, February 07, 2006

FISA, THE AUMF AND "SUPER -DUPER PRECEDENTS"

NYTIMES:
The Legal Arguments
In Limelight at Wiretap Hearing: 2 Laws, but Which Should Rule?

It is the sort of problem that judges confront every day. One law forbids a certain activity. The other may allow it. Which one counts?
Well, the NYTIMES of course frames the argumnent in a way which is biased. IN FACT, the argument that the Bush Administration is that the two laws (FISA and the AUMF) are not in conflict and that they are using BOTH laws.

And they further assert that the since constitution TRUMPS both laws, these laws MUST EITHER be read in a way which is consistent with the constitution or they must be ruled un-constitutional and null and void. Since these laws are other wise okay in other respects (and since Bush is using FISA warrants in other areas), the Bush Adminstration argues that FISA and ther AUMF must be interpreted in a way which is both constituional and which is in agreement with other statutes (FISA must be read in a way which allows agreement with the AUMF and vice-versa). THIS IS HOW STANDARD CONSTITUIONALITY IS CONSTRUCTED.

This interpretation of the AUMF and FISA is consistent with EVERY SINGLE COURT WHICH HAS EVER RULED ON THE ISSUE of whether the POTUS has the constitutional authoirty to order intercepts of enemy communications - INCLUDING THE SCOTUS (Keith 1972), THE FISCR (obviously a post-FISA ruling), AND SEVERAL FEDERAL DISTRICT COURTS (also in post-FISA rulings). This is NOT a novel or contemporary interpreation of the POTUS war powers. Presidents Washington, Adams, Lincoln, Wilson, FDR, and Truman ALL did it. As they should have!

Surveillance of the enemy, and interecepting enemy communications has ALWAYS been considered "an essential incident to waging war" and a power of the POTUS as CiC. SCOTUS upheld this power once again in HAMDI - a decision written by centrist O'Connor. The SCOTUS ruled that the POTUS can declare US citizens enemy combatants, and detan them. This power is GREATER than the power to intercept the international calls of al Qaeda with US persons in the USA. It is ludicrous to argue that the POTUS doesn't have the lesser power, when the Supreme Court - and all other precedent - grants him the greater.

Therefore, the Congress does NOT have to - nor should it - spell out in any AUMF that it ALSO is authorizing the POTUS to detain enemy combatants or to intercept enemy communications. IT IS A GIVEN.

So the Bush Administration's interpretation of the AUMF - (that it statutorily mandates the POTUS to intercept al Qaeda communications) - is the only LOGICAL one, and the only legal one BASED ON SCOTUS STARE DECISIS.

In fact, when taken along-side the 1972 SCOTUS Keith decision, the FISCR decision, the FISC decision, and other federal district court decisons regarding al Qaeda - (all of which have links in this post) - I'd argue that it's s "SUPER-DUPER PRECEDENT!"


What is more, it is LUDICROUS to assert - as the Leftie Dems do (and as Specter seems to!) - that intercepting al Qaeda's calls to the USA (or from the USA) is NOT part of the war we are now egenaged in. The enemy can and will attack us here; they SAY they will, and they have already tried numerous times SINCE 9/11.

This is an enemy whose attacks on us are NOT limited to battlefields overseas. We MUST fight them here if we are to defeat them and if we are going to prevent attacks such as 9/11 - OR WORSE. The POTUS as CiC has the authority to wage this war as it must be waged - according to the AUMF, and the constitution - and this is SETTLED LAW. (More settled than even Roe v. Wade!)

(A previous post is HERE.) (NOTE: This post has been updated to deflect arguments offered by Dr. Steven Taylor of excellent POLIBLOGGER. Check out his counter-argument in the comments section!)

10 comments:

Steven Taylor said...

FISA is post-Keith, and the Presidents you cite are pre-FISA, not to mention that anything done by Washington, Adams and Lincoln hardly could consitute wiretapping in any modern sense.

As such, it is rather difficult to make a cogent argument that those precedents are especially useful for informing the current situation.

reliapundit said...

STEVEN TAYLOR - THANKS FOR COMMENTING.

unfortunately: YOU ARE FLAT OUT WRONG - bigtime!

FISA is statute; it CANNOT trump the constitution; therefore 1972 SOCTUS is applicable, even if it came before FISA!

The SCOTUS asserted in Keith that the POTUS HAD CONSTITUIONAL authority to intecept enemy communications.

this is SETTLED LAW. Every court has since upheld this. NONE has even aasertyed that the POTUS doesn't have this authority.

it is therefore SUPER-DUPOER precedent - CONSTITUTIONALLY.

FISA did nbot ansd could not amend the constitution.

This is a simple, open-and-shut case on thios basis ALONE.

ON TOP OF THIS: there is the AUMF, and as CASS SUNSTEIN has argued, the AUMF AUTOMATICALLY authorizes the POTUS to use ALL NECESSARY INCIDENTS OF WAR.

SCOTUS UPHELD THIS IN A DECISION WRITTEN BY O'CONNOR!

if you wish to hold CORRECT opinions, then please correct your conclusion.

or if you oprefer being wrong, then keep it.

all the best!

Steven Taylor said...

One problem here, amongst many, is the constitution does not explicitly grant these powers. It is wholly a matter of interpretation as to the application of the Article II powers.

And in re: FISA and previous SCOTUS rulings. You have to have a court decision on whether a previous court decision vitiates a law passed after a ruling was issued--that's how are system works. Even if your position is correct, which I dispute, you would have to have a legal decisions rendered in court. As it stands FISA is the law of the land on this topic and for that to cease to be the case it would have to be overruled by the courts or amended in some way by the Congress. The President cannot unilaterally dismiss the law.

And the reasoning that the AUMF authorizes the actions in question requires a remarkably broad interpretation that, if taken to its logical conclusion, would lead to the idea that the President could so absolutely ANYthing in prosecuting the WoT. Is that the position you wish to defend?

Could he arrest all Arab-Americans to fight the WoT? Could he close the borer to all travelers from the Middle East? Could he order searches of the homes of anyone who has traveled to Pakistan in the last 5 years? Could he shut down the blogs of anyone who criticized his program?

There is a line somewhere regarding the scope of the AUMF--were would you draw it?

Steven Taylor said...

And BTW: weren't conservative makig fun of the concept of "super-duper" precedent when it was being applied to Roe?

I am not sure why it would be considered a good argument now.

Further, there is no direct precedent here--i.e., no directly analogous case, so really trying to state that clear precedent exists is incorrect.

reliapundit said...

(1) yup: i'm making fun of the term super-duper precedent, using it against the very guy who coined it.

(2) there is a directly analogous case: the enemy combatant case that i cited. the scotus decioded the POTUS has the right to have us citizens held as enemy combatbants. this is MORE intrusive than intercepts. the decision specifically said that this power is an essential incident to war.

it is unreasonable to argue that the potus can detain a us citizen but cannot listen to his international calls with the enemy.

(3) the coinstitution doesn;t explicitlky grant MOST powers or rights! most of constitutional law is in INTERPREtATION! that's why precedent is so important.

(4) the POTUS has NOT unilaterally dismissed FISA - the FISCR - as in Court of Review - has upheld this power of the potus. the link is in my post.

(5) the interpreation of ther AUMF (that it MUST allow all necessary incidents of war) is standard, and a matter of precedent. it is NOT overly or remarkably broad. not in the slightest bit.

(6) many of the HYPERBOLIC HYPOTHETICALS you cite (to incite fear) could in facxt be constitutional. the interment of japanese US CITIZENS by FDR was ruled CONSTITUIONAL by the SCOTUS and that ruling has NEVER been over-ruled. It is still the law of the land. and constitutional.

but your list is ESPECIALLY HYPERBOLIC because the AUMF (and ALSO the NSA program under discussion) only apply TO AL QAEDA AND ITS AFFILIATES.

And Hayden has testified UNDER OATH that "affiliates" is NOT a vague/loose term of art, but a term of "SCIENCE" -that it applies to specific groups, and not all jihadoterrorist groups. they must be in alliance with al qaeda.

I would draw the line around the AUMF/FISA as broadly as necessary.

I think it is UNREASOBALE to FEEL that there would have been MORE checks and balances in this program is ONE FISA JUDGE HAD SIGNED OFF ON IT -- which is what the opponents are saying; this is what the dems on the SJC said yesterday.

IN FACT< THE PROGRAM HAD MORE REVIEW AND MORE CHECKS AND BALANCES!

instread of telling ONE FISA judges, Bush told one FISA judge, and 8 Congressional LEADERS - DOZENS OF TIMES!

These Congressmen are ELECTED - unlike ther FISA judge - and therefore this check - the way which Bush went about it - is a better check on his power.

This is irrefutable.

ALL THE BEST!

Steven Taylor said...

Well, given that your positions are irrefutable, I suppose it is pointless to continue the conversation.

Still, I will make one last stab at a few things, and then leave you to your opinion.

First, briefing isn't oversight--it is the conveyance of information. What, pray tell, could those 8 members of congress have done in that context? That is to say: what check could be applied?

Second, my hypotheticals were raised to ask a legitimate question: if the AUMF allows for the abrogation of the 4th Amendment in some cases, as you argue, where is the line in regards to what the AUMF does not allow. If my hypotheticals are over-the-top, you must agree then that there is a legal line somewhere. However, I do not see where your position draws that line. If one provision of the Constitution is to be set aside because of the AUMF, then why can't others? "All" means "all"--right?

BTW, the AUMF does not name al Qaeda, but rather "persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." If we are going to give the President broad authority to determine what "all necessary and appropriate force" means, why limit him to just al Qaeda in the other clause?

Someone has to ultimately determine what consitutes "necessary incidents to war". I would note that such actions are normally presumed to take place on foreign soil.

Third, as I understand it, FISA was passed to deal with some of the legal ambiguities that resulted in the Keith case. As such, one cannot dismiss FISA by simply appealing to Keith. To adequately make that arugment, one would have to have a ruling from the courts on the applicability of Keith to FISA.

Fouth, the federal court case you cite above deals with searches that are wholly overseas. The issue at hand is surveillance of citizens on American soil. There is a rather important distinction there. The search under question, that of El Hage's home was in Kenya.

At any rate, I think these are key issues, although I realize that I shan't be swaying you any time soon.

Merv said...

There was a 2002 FISA court case that found that the President had the inherent power to conduct surveillance.

reliapundit said...

steven;
the fact that you kove on to NEW points further proves my last round is irrefuatbel.

i will dispence with these new ones, too:

1 - you wrote: "What, pray tell, could those 8 members of congress have done in that context? That is to say: what check could be applied?"

they could have used the "1998 intelligence whistleblower defense act" provision and filed complaint and demanded an investigatio by the NSA IG.
and they could have filed letters saying they thought the program was illegal, NONE DID EITHER.

2 - you wrote:
"if the AUMF allows for the abrogation of the 4th Amendment in some cases, as you argue, where is the line in regards to what the AUMF does not allow. "

ME: NOTHING the NSA did violated the 4th amendment. as youn shoiuld know warrants are not required for all searchs and not all surveillance. the sopcuts has ruled on this nuymerous times. GOOGLE the "spoecials needs" case law. the 4th amendment requires that the search/surbeillance be reasonable. the NSA intercepts ARE reasonable.

ALSO: when the FBI gets a warrant on a mafiosi's phone, and YOU call the mafiosi, the FBI has NOT violated YOUR rights. your rights are INCIDENTAL to the warrant. DITTO the righhts of us persons in these intercepts of ENEMY communiques - (enemy as defined by the AUMF).

scotus has ruled on this too.

3 - you ask:
you must agree then that there is a legal line somewhere. However, I do not see where your position draws that line. If one provision of the Constitution is to be set aside because of the AUMF, then why can't others? "All" means "all"--right?

ME: the line is that the communiques MUST be of the enemy as defined by the AUMF.

FISA would still apply for Iranian spoies or French/saddamite spies etc - even while we are at WAR with al Qaeda.

and FISA would still appply to LAW ENFORCEMET surveillance. BUT NSA IS NOT A LAW ENFORCEMENT AGNCY; IT IS PART OF THE DoD.

4 - you ask:
BTW, the AUMF does not name al Qaeda, but rather "persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." If we are going to give the President broad authority to determine what "all necessary and appropriate force" means, why limit him to just al Qaeda in the other clause?

This is a silly question. al Qaeda did 9/11. and alQ have specific affiliates. as hayden testified and i already noted "this term "affiliate" is a term of science, not vague."

and the CiC must have and has alwys had broad powers to make war. [powers much more severe than intercepting the us-international calls of alQ.

5 - you wrote:
"Someone has to ultimately determine what consitutes "necessary incidents to war". I would note that such actions are normally presumed to take place on foreign soil."

ME: that most previous wars were fought exclusively on foreign soil is irrelevant. this is not true about this war.

6 - you wrote:
Third, as I understand it, FISA was passed to deal with some of the legal ambiguities that resulted in the Keith case. As such, one cannot dismiss FISA by simply appealing to Keith. To adequately make that arugment, one would have to have a ruling from the courts on the applicability of Keith to FISA.

ME: Keith asserts that it is a basic constittional priciple that the POTUS has the power to order intercepts of foreign enemies; (it ruled agaiunst nixon because HE CLAIMED his wiretaps were aimed at domestic threats, and they were mostly politcal threats).

when FISA was passed and signed into law - and every time it was amended - the POTUS at the time noted this. this is NOT a novel claim by GWB.

6 - you wrote:
Fouth, the federal court case you cite above deals with searches that are wholly overseas. The issue at hand is surveillance of citizens on American soil. There is a rather important distinction there. The search under question, that of El Hage's home was in Kenya.

ME: this is not the reason i cited the case. the court case i cited named al Qaeda as a foreign terrorist organization as defined by FISA 1801 and 1802 - and these sections specifically allow WARRANTLESS SURVEILLANCE OF THIS TYPE OF GROUP.
(and this is indepoendent of any AUNF).

anyhow....

you attempted good anti-Bush/NSA arguments.

i thank you for taking the time to do so here.

i think the SIC will hold closed sessions and determine that for technocal reasons FISA doesn;t apply, and this will satisfy Congress.

then at some point in the future left-of-center dems will attempt to amend FISA.

if it does go to scotus, then scotus will uphold the powers of the POTUS as CiC.

all the best!

reliapundit said...

merv, i think i cited the 2002 FISCR (court of review) case which held the POTUS has even broader powers. and that therefore one must presume he has lesser powers.

thanks for commenting.

Anonymous said...

I think I can simplify this:

The President of the US has the authority and the sworn duty to hunt and kill America's mortal enemies.

If you think America's sworn enemies have the Constitutional legal rights us US Citizens, you have passed from the realm of the sane into the realm of the moonbats.

Moonbat arguments are specious and off-topic, because the President has the duty to defend Americans, he therefore has the authority to defend Americans.

If Americans choose to side with America's sworn enemies, they cannot retain their Constitutional rights, they have crossed the line you write about. It is not that the President has crossed a line, it is that the enemies have crossed the line.

The only thing left to do is to destroy them, wherever they are found, using whatever means is necessary to accomplish the mission.

The enemies of America DO NOT HAVE CONSTITUTIONAL RIGHTS.

If you are siding with the enemy, you have foresworn your citizenship, and you do not enjoy Constitutional protection. Duh