Congressional Research Service Report on NSA Surveillance:
The Congressional Research Service has published a report analyzing the DOJ letter sent to the Intelligence Committee on the NSA surveillance program. The CRS report is quite narrow. To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program. The CRS report is appropriately cautious, too. It acknowledges that we don't have enough facts yet to analyze the legality of the program. I hope to post more on that, and some of my further ruminations on the NSA program, at some point over the next few days.
All Related Posts (on one page) | Some Related Posts:
- Congressional Research Service Report on NSA Surveillance:
- Data-Mining, FISA, and the NSA Surveillance Program:
- New Risen Book Sheds Light on NSA Surveillance Program:...
- Legal Analysis of the NSA Domestic Surveillance Program:
- Deputy Attorney General Stepping Down:
- Staffing the Justice Department:
Of course, we're still waiting for facts. But the legal issues at least now have an advocate on record stating a position that Congress cannot so easily ignore.
"This reading [the Administration's] would seem to make the exclusivity provision meaningless, a construction not ordinarily favored by courts. It may be questioned whether Congress actually intended for the exception to the criminal prohibition in FISA to negate the more specific requirements in Title III and its exclusivity provision."
They then move into a discussion of the Moschella Letter's proposition that the Administration's interpretation of FISA and the 2001 AUMF should be favored in the name of avoiding a constitutional problem. They don't seem favorably impressed by that argument, and again evidence a bit of humor:
"It is unclear how FISA and the AUMF are seen to collide. Principles of statutory construction generally provide guidance for interpreting Congress’s intent with respect to a statute where the text is ambiguous or a plain reading leads to anomalous results; and where possible, a statute that might be read in such a way as to violate the Constitution is to be construed to avoid the violation. However, such principles are only to be applied where there is a genuine ambiguity or conflict between two statutes, and where there is some possible reading that might avoid a conflict. While the Court has been known to read into a statute language that does not appear, it would be unusual for the Court to read express statutory language out of a statute, except by declaring at least that portion of the statute to be unconstitutional. It would not ordinarily be presumed that Congress meant the opposite of what it said, merely because its words are constitutionally problematic."
Ouch.
Accordingly, one general theme of the memo was that the Administration cannot use its Article II arguments to force through its interpretation of the statutes so that the merits of those constitutional arguments need not be tested. As the memo states in its Conclusion:
"To the extent that the Administration seems to base its interpretation of the AUMF and FISA on the assumption that a reading contrary to the one they rely upon would be an unconstitutional violation of separation-of-powers principles, it appears to regard the matter as deserving the highest level of deference under Youngstown’s first category simply by virtue of the assumption that it would survive scrutiny under the third category. To conclude that Congress’s enactments are unconstitutional and therefore could not reflect Congress’s intent seems to beg the question."
Again, ouch.
Incidentally, it was also interesting, but unsurprising, that they included an extensive discussion of In re Sealed Case, including the now infamous dicta.
The CRS memo thus confronts and rebuts the legal arguments advanced by the administration, which rest on that tiny factual base.
Neither the administraton nor CRS analyis grapple with the larger but still sketchy set of facts reported unofficially in the press, involving the technical details of the NSA surveillance.
Nevertheless, the CRS report is immensely valuable at this point in the public discourse because it dispels some myths and disinformation about the law that have been repeated rather loosely by political advocates.
It will be interesting to see how (if at all) various members of Congress react to this memo. In particular, I've already seen a commentator here speculate about whether the authors of the memo are actually nonpartisan, and I wonder if anyone in Congress will do the same.
Keep in mind that some of the commentators here who have been defending the administration have already resorted to, among other tactics, accusing the administration itself of lying about its legal justifications, and misquoting legal authorities in opposition to their actual language.
While we cannot just ignore them without letting them deceive other readers, I think it is probably better at this point to drill on their lack of credibility than get drawn into repetition after repetition of the same foundationless arguments.
Why not a division of labor? You handle credibility, and I'll handle endless repetition.
Although every once in a while, something new does come up in such discussions. And I also think some people are arguing in good faith, and I find those particular debates interesting even if they end up being a bit circular in the long run (indeed, I assume they feel the same way about me).
That same commentator who, without foundation, questioned the nonpartisanship of the CRS authors is a master of slinging mud and then ducking. Similarly, he has advanced unsupported innuendo against Judge Robertson. Notably, that same commentator has been redressed by his peers here -- unrepentantly -- for doctoring a quotation from a court opinion.
We can hope that arguments of such loose ethical character will not gain more traction here than they deserve. In the political world at large, standards are harder to enforce.
I'm similarly struck when it is argued by Bush defenders that "Clinton and Carter did it too." Well, yes, all presidents assert great powers.
Is there an honest way to resolve such institutional disputes? Or is this what elections are for?
I think it is reasonable to suspect that some sort of pro-Congress bias, conscious or otherwise, might arise in the CRS. But I'm not sure that bias would arise within the context of the initial statutory question--namely, whether or not Congress actually intended to authorize such programs, despite the existing federal laws and the USA-PATRIOT Act, with the 2001 AUMF. In other words, a pro-Congress bias does not imply a preference for finding a conflict where one does not actually exist.
In any event, if a true conflict between Congress and the President exists, there are some constitutional mechanisms (besides elections) for dealing with such disputes. For example, starting with George Washington himself, the President has exercised his veto power over legislation he deems unconstitutional. Of course, in this case, it is too late for the President to exercise this power with respect to the existing statutes, but he could do so with respect to any further legislation. Naturally, the President's veto can be overridden, but at least the President can make it harder for Congress to pass laws he deems unconstitutional.
Conversely, if the President refuses to enforce a law which Congress believes is constitutional, they ultimately could impeach and remove the President. Obviously, that is a drastic remedy, but it is available--and might well be most effective in the form of a threat, at least when conjoined with extensive congressional oversight.
That would be the "Dick Cheney for President" option?
That is one of the many reasons that I am personally hoping this does not end in impeachment and removal.
I am now wondering if the NSA surveillance on myself and my husband at the heart of Supreme Court Dockets No. 05-7287 and 05-7771, and The Vessel Mistress surveillance platform case being filed on petition to the Supreme Court, was triggered by my father who was one of the principal architects of IBM's participation in the NSA surveillance system and subsequent efforts by the Administration to protect him, by stymying my efforts in my Americans With Disabilities Act civil rights cases to hold him accountable for drugging me with Quaaludes and sexually abusing me when I was 14-17 years old followed by his domestic violance causing me traumatic brain injury when I confronted him about it -- all of which left me requiring reasonable accomodations for the disabilities he caused me. Clearly, my bar admission cases were affected by the NSA data information, given that the NCBE assists with background checks on bar applicants for the States of California and Florida by ultimately utilizing the NSA files.
I think if the significant injustice that has been done to me is the result of the Administration's protection of my father because he was involved in the NSA's program involving IBM, I have the right to know, to discovery, and to a remedy -- 42 U.S.C. Section 12203 provides a cause of action against "any person" who retaliates against someone who has filed an ADA suit, including a President or other federal officer or instrumentality. Nothing in the language of that statute limits the "any person" to a State actor.
One possible next step for Congress, beyond the upcoming hearings, might be the enactment of clarifying language that explicitly states existing law cannot be construed to authorize such surveillance activity. The upcoming renewal of the USA-PATRIOT Act would seem an ideal vehicle for such language.
The President then could back down. If he defied such an act, then we would have a bona fide constitutional crisis.
Alternately, Bush could propose clarifying language codifying his own position explicitly. I believe that would surely fail in Congress.
The line of succession goes Cheney, then Hastert, then Stevens (AK). Wow, what a choice!
I have often seen the 'veto' option sited as an argument for the defense of legislative branch power through FISA. Let me understand you correctly, you think in the political climate after 9/11, the executive branch should have exercised its veto option and struck down the whole Patriot Act because he did not agree with its effects on FISA ? Do you consider that a reasonable defense ? I think the more relevant line would be asking how many times has Bush filed suit against FISC ? Why was Sealed Case necessary if the FISC had been carrying out its post Patriot Act responsibilities correctly ?
I will not claim that the FISC is solely to blame, but I am also unwilling to lay the blame exclusively on the executive branch. I think this is an issue that SCOTUS has to address and until they do, we are tredding in murky water. I do think the quote cited by William &Mary Prof. Meese from Justice Joseph Story about the Commander-in-Chief power is salient and relevant to this issue:
"Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power."
Story's multi-volume "Commentaries on the Constitution of the United States" (1833), is still considered one of the most influential works on the Constitution and constitutional issues and intent.
Irrespective of the political consequences to impeachment, failure of the Congress to assert the supremacy of law is worse. I think it is important to remember always that impeachment is not conviction, and should be considered more like a bill of particulars or indictment. Obviously this should not be done without proper investigation of the facts and law, akin to the role of a grand jury, but I think it is absolutely imperative that this investigatory role be undertaken without delay.
Yes, I understand, you advocate dictatorship. I don't doubt you expect Bush would be a benevolent leader, quite unlike historical examples. If some testicles need to be crushed, then it is for the greater good. Can't make an omelette without breaking a few eggs.
Yes, I think if the President believes a law is unconstitutional, and he does not intend to follow it, he should first try to veto it. Of course, this is all counterfactual--if Bush had actually argued to Congress that FISA as amended by the USA-PATRIOT Act was unconstitutional, then Congress may not have passed the USA-PATRIOT Act in its eventual form. So we don't know if Bush would have needed to veto it at all.
But he didn't do any of that.
Incidentally, if you take "direction of war" in that Story quote to include not just the power of military command, but also the power to make military law, then Story's view would be refuted by both the plain text of the Constitution and a large number of Supreme Court statements, including some in Hamdi. But I doubt that is actually what Justice Story meant.
There you go again, pejorative rhetoric in place of reasoned argument. It does not strengthen your argument to demonize and misstate positions. Were this a courtroom you would be chastised by the sitting judge. You seem to have a tendency to let your linguistic talent devolve into jejune, pusillanimous, partisan invective when someone refuses to agree with you.
How ironic.
Quoting jukeboxgrad:
While firmly believe in your right to such an opinion on vetoing the USA PATRIOT Act, I believe it is grounded in idealistic perception and not in pragmatic reality. If he had the power of the line item veto for legislation, I would find your argument very persuasive. Without that, your argument is akin to throwing out the baby with the bath water. To whit, the changes in FISA were certainly better than the pre-existing FISA rules, but to engage in an extended debate with Congress over that in the immediate wake of 9/11 would have a detriment to expediency.
As far as the Justice Story quote, the most relevant part:
"Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power."
It is something the Founders supported and recognized, ergo, to try to separate intelligence gathering, necessary to war tactics, decisions and strategy, into categories delegating entities power not constitutionally assigned, can very reasonably be argued as a detrimental constraint on, or usurpation of, executive authority to 'faithfully' carry out his duty to protect and defend that violates the spirit, if not the actual intent, of the Constitution.
Same old, same old, diversionary tactic. Instead of addressing the subject matter, you attack the poster.
I made a simple mistake of not providing a link of attribution in a post that was mostly made up of my opinion. To those who express such a level of offense, I apologize. If that is not enough, c'est la vie. I have never asserted that I am a lawyer, nor have I asserted to being a computer expert. I simply claim to be human with my own opinions based on my own assessments and application of logic and research of others with far more expertise than I have.
Choices have consequences. If the President thought it was more important to get the USA-PATRIOT Act then to voice his constitutional objections to FISA, then he should have to live what that choice. In other words, you are basically giving him the power of a secret line-item veto, and that is not consistent with the Constitution.
As for Justice Story, notice the things not on his list: policy, rules and regulations, protecting the rights, preventing abuses of power, military law in general, and so on. In other words, his quote provides no support for the proposition that military command implies freedom from military law.
In general, in light of things like the actual Articles of War passed both before and immediately after the adoption of the Constitution, the Federalist Papers, contemporaneous treatises on military law and the Laws of Nations, and the plain text of the Constitution, it seems clear that if the President's Article II argument was evaluated on originalist and/or strict constructionist grounds, it would be DOA.
But for good or ill, the courts do not uniformly follow originalist and/or strict constructionist methods. One possibility is that the President could rely on stare decisis--of course, the CRS memo does a good job of summarizing why the pre-FISA caselaw does not actually support his position, and the post-FISA caselaw, with only the possible exception of the Sealed Case dicta, flatly contradicts his position.
But perhaps his last, best, hope would simply be that a court would think his view makes for better policy, and accept his view of the Constitution on that basis.
All of which makes for some interesting irony.
Actually, that does not begin to describe what you did. You edited a quotation from a court opinion, altering its meaning substantially, then published it with no indication that edits were made.
For details, interested readers are referred to postings
here,
here,
here,
here, and
here.
Your denial now only compounds the offense and further undercuts your credibility.
You assign yourself clairvoyant powers and mind reading ability, the quote from the court was cut and paste from the unattributed site. I contend that your attempts to make such assignations of fact undercuts your own credibility by the simple fact you continue this diversion from the subject matter and seek to make me the subject. I admit to my mistake, if that is not good enough for you, or anyone else, like I said, C'est la vie. I accept the criticism you link to as deserved, but none of it goes to any factual representation of motivation. I would daresay that any of my critics, if put under scrutiny, would find mistakes made in their past, as such, exaggerated expressions of moral turpitude are disingenuous and self-aggrandizing attempts to claim chimerical moral superiority to avoid having to address or divert from the subject at hand, the constitutional issue of the NSA program.
If you seek to continue repeating your demonization tactics of diversion and poltroonish invective, you will be ignored, as such tactics are eschewed by this site and I decline to further propigate it.
I believe it was me, not DtI, at whom your thesaurus dump was properly aimed.
This is the first time I have seen you admit at least a "mistake" in the previous thread, which I had read with disgust but did not actually participate in. A useful next step would be an expression of remorse embodying recognition of what your prior behavior actually encompassed.
I also have noted a propensity in your posts to insinuate -- with absolutely no foundation except your own speculation -- ethical lapses by public players in opposition to your favored position. In this class of comment I would place your baseless assertion that the authors of the CRS memo may be personally partisan, and that Judge Robertson may have violated his security oath.
When you bring such arguments to this blog, it has a certain smell. Since you are your own source for such allegations of misconduct in others, your own credibility is very much at issue. You cannot hide behind cries of "ad hominem." Do not be surprised to find your own transgressions examined by the rest of us, whom you are implicitly asking to trust your judgment of character.
Did you mean to link this post to the lovely Orwell excerpt?
KMAJ wrote:Simplified English translation: I advocate dictatorship.
"There you go again, pejorative rhetoric in place of reasoned argument"
Uh, in the civilized world, "reasoned argument" is not done via the kind of flagrantly dishonest quoting you've done, as explained here. Pointing out your repugnant behavior is not invective. It's just telling the truth.
Given your track record of dishonest quoting, only a fool (and I realize many of your ideological pals fall into that exact category) would henceforth take a single word you post at face value.
"I made a simple mistake of not providing a link of attribution in a post that was mostly made up of my opinion"
You're not just a liar, you're a compound liar, and you rely on the fact that many people are foolish enough to not investigate what you say.
Your main offense was not omitting a URL. I noted that only in passing. Your main offense was deliberately removing ellipses that were proper and necessary. In other words, even Hinderaker's dishonest quoting was not quite dishonest enough for you.
More on Hinderaker's latest dishonesty here. You two are birds of a feather. It's no small thing that you took it upon yourself to attempt to outdo him.
"the quote from the court was cut and paste from the unattributed site"
You did not merely cut and paste from Hinderaker. You copied his work, but also removed the ellipses. Even HInderaker lacked the daring to mangle Jackson's words quite so blatantly. It took you to do that.
Then again, you might be using a spyware-infected version of Windows which oddly removes random characters when cutting and pasting. Outside of such an explanation, the ellipses disappeared because you disappeared them.
"I admit to my mistake"
Actually, you suggested your only mistake was failing to provide "a link of attribution." You still have not admitted to what is obvious to anyone who cares to take a look: you deliberately excised ellipses, even though they were proper and necessary.
"none of it goes to any factual representation of motivation"
When you explain why your computer spontaneously makes random characters disappear, then we should reconsider our assumptions about "motivation."
Then again, maybe you can get your mentor to get his mentor to get his mentor (repeat as needed) to talk to his pals at NSA and have them hack VC to make your shameful history disappear. Your foul posts can end up in the same big bitbucket in the sky where you dispatched those ellipses.
"you will be ignored"
Feel free to ignore whomever you like. It's still a free country, sort of, despite your best efforts. But your bad behavior will not be ignored, or forgotten, and it will not go unmentioned.
Here's a suggestion: try a new handle. Your old one is shot.
Apodaca, thanks for the brilliant Orwell (which I had never seen) on the subject of "pure wind," which is a good description of our slippery pal.
Mea culpa and apologies to DtI.
As far as thesaurus laden, I often run into that inaccurate accusation, command of the english language is often derided with such baseless charges to demean. I make no apologies for my ability to use and apply the english language without a thesaurus.
I regret not having used proper attribution in my mistake, but there was no evil intent in the mistake. If that is not good enough for you, then I will simply shrug my shoulders.
Regarding your observance of propensity, I clearly express them as opinion of plausibility and not as fact. I believe Medis, I could be wrong, addressed this in a discussion we had in another thread. I can only control what I opine, not how others perceive or interpret. Should you not also then criticize those who demonize Bush on similar insinuations ? Or those who invoke Nazi comparisons ? It would seem that would only be fair as opposed to selective displays of indignation. Don't get me wrong, you have the right to be selective, it is human nature to only object when such insinuations are contrary to supporting one's position. I tend to approach it from a free speech perspective of 'sauce for the goose' and I do not approach bias as coming from a perspective of evil intent, but from human nature that we are all subject to personal bias based on personal experience and beliefs.
Have you seen me attack another poster for thier opinions on the subject matter ? I believe I have shown due deference and respect for other's rights to have their opinions that may be different from mine. Whether someone wishes to engage in ad hominem or non sequiturs is outside my control.
Nice job trying to get a casual observer (which probably describes most observers) to believe that all this fuss is over a mere lack of using "proper attribution."
"Whether someone wishes to engage in ad hominem or non sequiturs is outside my control."
Your bad behavior is on the record, even as you try to deny it. That's something else that's outside your control.
A debater who is trying to write a brif on this for both sides.
Then, no doubt, you will forgive observers who find it plausible that your own ethical record is so shaky that your credibility is destroyed. If plausibility is the minimum standard, you are as open as your victims to whatever accusations can reasonably be imagined.
You profess to see nothing wrong with making unsubstantiated attacks on others. A little remorse here might help win the sympathy of the crowd.
I repeat, so long as you assert that it is okay to follow the MCCarthyite practice of slinging mud and then ducking, your own credibility and attitude toward ethics are very much on the table. You have no "ad hominem" defense.
I do find it interesting that you now say you only plagiarised the misleading quotation from someone else who did the misleading editing. At a minumum, you need to start reading more honest sources than the partisan screeds from which you apparently take your talking points.
It would have been more credible if you had made that admission at the time, when the victims of the intellectual fraud here were complaining to you. Yet you remained silent on that point, and in fact defended the practice of such redaction as common. And even today, you have not explained how the ellipses came to be missing. The other scoundrel apparently left them in.
You are invited to look not only at the original NYT story of 12/16, but also a major followup in the NTY on 12/24. (Sorry, I don't have a link that works at the moment.)
Paraphrasing, the 12/24 story said that one thing new about taps in the post-9/11 period was that the NSA began tapping into telecom lines at or near U.S.-based communications switches, apparently with the cooperation of unnamed telecom companies.
Also see the recently published book by James Risen, "State of War : The Secret History of the C.I.A. and the Bush Administration", and the recent threads here that discuss it.
Even with these disclosures, there is still much we don't know about the technical details and how they interface the technical details of the law. Poster John Lederer on this site has done some interesting research in that area, which has been discussed in various threads here.
Hope this helps.
It's important to keep in mind that this is a very complex issue, not just technically, but legally too. Just in terms of rules of construction, there are more pertinent canons than you can shake a stick at (implied repeals are disfavored, specific statutes are favored over general ones, statutes later in time are favored, a statute should not be construed to render any part surplusage, statutes are to be construed so as to avoid serious constitutional questions, et cetera). The CRS Report only scratched the surface of the legal issues.
I still disagree with Professor Kerr, who seems to believe that the AUMF's authorization of "all necessary and appropriate force" was not meant to impliedly supercede any prior statutory provisions. If that were true, then the last sentence of the AUMF (which sought to protect the War Powers Act) would be surplusage.
I came across a dissent by Justice Stevens that seems very relevant here. The case was RADZANOWER v. TOUCHE ROSS &CO., 426 U.S. 148 (1976).
"[W]ith equal logic we might describe either statute as creating an exception from the somewhat more general provisions of the other. The rule that the legislature presumably intended to give effect to the more specific statute could therefore be applied to support the petitioner, as well as the respondent bank, in this case. Similarly, without pausing to consider the reason why each statute was enacted, we might simply apply the rule that the more recent of two conflicting statutes shall prevail, rather than the rule that the special statute takes precedence over the general….Preoccupation with the ancient doctrine of implied repeal should not foreclose this simple construction of the plain language of the 1934 Act.
"The rule that repeals by implication are not favored, like all other canons of statutory construction, is merely one of the guidelines to observe in the search for a construction which will best reflect the real intent of the legislature…. Specifically, in this case…. the canon of construction strikes me as an unreliable guide for ascertaining the true intent of Congress.
"Congress may well have simply overlooked the special venue provision in the Civil War statute, particularly since Langdeau had not yet been decided. It may therefore be accurate to describe the omission of any reference to the earlier statute in the legislative history of the later one as inadvertent."
I would have liked the CRS Report to have told us more about the legislative history of the AUMF. Was there any reference to FISA in the legislative history of the AUMF? Did Congress realize that by safeguarding the War Powers Act, they were potentially broadening the meaning of the words "necessary and appropriate force"? Unfortunately, it does not seem that the CRS Report touched on those issues, although the CRS Report certainly provides some useful info.
I think you are the only person on the planet who thinks the War Powers Act section of the AUMF is remotely relevant.
Unless the CRS mission was to respond to your blog comments, which are found deep inside discussions here and mentioned briefly on your own, there is no reason for them to address the issue.
Notably, the lawyers who laid out the administration legal case in the 12/22 letter to congressional leaders never mentioned the issue you raise, which you seem to think is central to Bush's position. If you want to fault someone for missing the War Powers, fault them.
"If it is being intercepted overseas, wouldn't the definition of electronic surveillance not apply if they shouldn't have a reasonable expectation of privacy"
I agree. If communication is "being intercepted overseas," and if you find a way to sweep aside REP, then as far as I can tell FISA is not being violated.
However, I haven't seen a cogent argument for why REP does not apply. Aside from that, it's important to notice that Gonzales has admitted that FISA is being violated.
I have a feeling we didn't bother exporting our point-of-acquisition (to achieve a purely legalistic payoff) because that only makes acquisition harder, and there would in any event be no legal payoff because in fact REP is operative.
Just an Observer, you seem very quick to ridicule my view of this matter, but very slow to address the substance of it. Do you believe that the AUMF's authorization of "all necessary and appropriate force" was not meant to impliedly supercede any prior statutory provisions? If so, then the last sentence of the AUMF (which sought to protect the War Powers Act) would be surplusage, right?
It's not a complicated argument, and it has a lot more going for it than the Administartion's argument, which would seem to make the exclusivity provision meaningless.
I apologize if I seemed to ridicule, but I believe I have addressed the substance of your argument before.
To recap: It seems clear to me that the entire section of the AUMF that is about the War Powers Resolution, and appears under that heading, is precisely intended to explain how the AUMF relates to the War Powers Resolution. The language says what it means and means nothing more. There simply is no apparent reason to wonder if its language implicates any other body of law.
And unless I remember wrong, your efforts to advance your theory gained no real traction with anyone else on this blog or on your own. So you do seem to be rather alone on this one so far.
I have explored intellectually here my own pet theory about how the language of FISA might contain technical loopholes that would excuse the administration's actions, and I found no explicit mention of that theory in the CRS document, either. But that really did not surprise me -- and it would not hurt my feelings if you pointed that out -- since the CRS mission seemed primarily to respond to the administration's case as articulated in the letter to Congress, and the administration case does not raise the particular issue I am interested in.
As Prof. Kerr stated in his top-level post, that focus of the CRS document can be described as narrow.
I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.
As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?
If your answer is "yes" then isn't the last sentence of the AUMF redundant. Just an Observer:
I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.
As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?
If your answer is "yes" then isn't the last sentence of the AUMF redundant? The last sentence is:
"Nothing in this resolution supercedes any requirement of the War Powers Resolution."
How could anything in the AUMF resolution possibly supercede requirements of the War Powers Act, if the AUMF does not embrace action inconsistent with ANY pre-existing statutes?
Just an Observer:
I am not criticizing the CRS Report. I was noting its narrow focus, just as you have done, and just as Professor Kerr has done.
As for your claim that you have addressed the substance of the surplusage argument, I respectfully don't think you really have. The CRS Report mentions that the AUMF "does not expressly specify what it authorizes as 'necessary and appropriate.'" Is it your view that this language in the AUMF does not embrace any action inconsistent with statutes that were already in place when the AUMF was enacted? Yes, no, maybe?
If your answer is "yes" then isn't the last sentence of the AUMF redundant? The last sentence is:
"Nothing in this resolution supercedes any requirement of the War Powers Resolution."
How could anything in the AUMF resolution possibly supercede requirements of the War Powers Act, if the AUMF does not embrace action inconsistent with ANY pre-existing statutes?
As we have discussed (and agreed) before, the prior sentence in the AUMF makes clear that this act is intended to be a species of the class of authorizations contemplated by the War Powers Resolution. The second sentence means it is nothing more than that, so far as the War Powers Resolution is concerned, but leaves the general resolution unmodified.
If you want to call that redundant, perhaps it is. If there was a belt-and-suspenders redundancy, it was perhaps because some drafter raised the question that someone might try to construe the AUMF otherwise, so they wrote in that sentence -- all under the heading of the War Powers Resolution.
If anything, it would seem that the drafters anticipated no possible misreading that any other body of law might be construed to be affected or implicitly repealed, so they found no reason to mention any other body of law. There was no section labeled "Effect on other legislation," only the War Powers section, which stands on its own.
Besides, as far as FISA was concerned, there already was a section, 50 USC 1811, "Authorization during time of war," explicitly addressing the contingency of what a state of war would do to the operation of FISA.
The purpose of that section was to give Congress and the President time to make any changes deemed necessary.
That section, as you know, is keyed to a formal "declaration of war," which the AUMF does not call itself. Some say AUMF might be construed that way, others do not. At best, if so construed, the government would have had a 15-day period to conduct warrantless surveillance. If not so construed, there was no such grace period.
There is no evidence I have seen that makes the AUMF something more expansive than a declaration of war, and I have seen no one but you argue that it is. When I asked you if you thought it was more expansive, after comparing it to the language of the WWII declarations, you responded that it might be. But the only reason you offered was your War-Powers-surplussage theory, on which your entire theory of FISA seems to hinge.
So we seem to be back at the start of the circle.
FYI, you seem to be referring to a discussion we had here regarding declarations of war. In World War II, if a letter addressed to Erwin Rommel or Tokyo Rose was obtained by US officials, those officials didn't have to get a search warrant to open the envelope. If they intercepted a transmission to a mole in the U.S., they didn't have to turn off their radios until they got a search warrant. I'm saying is that the same kind of thing holds true today.
You say that --- in the wake of 911 --- the authors of the AUMF apparently did not think that any "other body of law might be construed to be affected or implicitly repealed." Therefore, you acknowledge (as you must), that the last sentence of the AUMF is "redundant, perhaps."
There are several big problems with construing the AUMF so that the last sentence is redundant. First, of course, it's a well known rule of construction that statutory provisions shouldn't be interpreted as surplasage. Second, the AUMF is a very brief and very important enactment, and therefore we shouldn't lightly assume that it was written sloppily. Third, construing the last sentence of the AUMF as redundant would make it necessary to address a very serious constituional issue that could otherwise be avoided: does the President's inherent surveillance power trump the power of Congress. Fourth, statutes governing the conduct of war should (if possible) not be construed so as to drastically diminish powers that presidents have traditionally exercised in wartime, especially given that 911 involved enemy infiltration into the U.S.
I agree with you that the NSA program raises serious issue of privacy, big brother, and all the rest. I hope that Congress will look into it, and that the program will be improved, to the extent that it can be improved. But at the same time, I do think it's possible to run international communication through a filter that detects key phrases or other key indicators, so as to trigger immediate human surveillance. I think that the threshold should be lower than probable cause for human intervention, and "reasonable cause" has traditionally been accepted for border searches.
We need to figure out what to do going forward.
You note that AUMF says this: "Nothing in this resolution supercedes any requirement of the War Powers Resolution."
You seem to be interpreting this as follows: "Nothing in this resolution supercedes any requirement of the War Powers Resolution. However, since we are not explicitly mentioning, in a similar manner, myriad other statutes that exist, you should assume that AUMF is a blank check for King George to burn any and all statutes as he sees fit, including statutes that explicitly constrain executive behavior in the conduct of war (as long as he can concoct some kind of cockamamie national security justification, that is subject to review only by himself and his hired hands). Just not the War Powers Resolution."
Actually, I was referring to a more recent exchange we had on this topic, on 12/30. I think these are the mostly the right links. If not, you can scroll up or down chronologically:
Post 1
Post 2
Post 3
Post 4
Post 5
In the hypothetical case we were discussing, in which FISA had been in place before Pearl Harbor, the legal landscape would have been quite different. Unlike the actual historical case in which Congress deferred to the executive, in the hypothetical the contours of executive authority would have been different, because Congress would have legislated on the issue.
You argue today that it would not have been good policy to restrict the President. But it would have been the law, unless Congress and the President had amended it.
The point of the hypothetical, obviously, was to test what you thought the declaration of war did to the situation. Notably, you did not assert that Pearl Harbor and the subsequent declaration would have automatically repealed FISA. Remember, Section 1811 was hypothetically in place, and it explicitly referenced a declaration of war.
However, you assert that the 2001 AUMF did somehow effect an implied repeal of FISA. And all you have to hang your hat on is your War-Powers-surplussage theory.
I think the plain language of 50 USC 1811, which requires no such mental gymnastics to apply to a situation of FISA in wartime, is much more on-point.
You see, we have discussed the merits of this!
Actually, the interpretation is as follows: "Nothing in this resolution supercedes any requirement of the War Powers Resolution, and we're not just saying that for the heck of it, but rather we're saying it because we mean for the President to use all necessary and appropriate force against the enemy notwithstanding other legal requirements. Of course, what is necessary and appropriate is subject to judicial determination, and is to be determined in view of what other presidents have traditionally been able to do."
Your hypothetical language says, "Of course, what is necessary and appropriate is subject to judicial determination..." let's stop right there.
Assuming arguendo that your language reflects Congressional intent, the President bypassed precisely such judicial determination.
Thank you for the link to this blog entry. I was laughing but wasn't quite sure if I should be crying.
Thanks for the links. In response to your hypothetical, I said it was "ambiguous" whether the 1941 Declaration of War would have superceded FISA, and I also said that the superceding effect of the AUMF is much stronger because the AUMF explicitly exempts the War Powers Resolution from being superceded (which wouldn't make sense unless SOMETHING was indeed superceded).
Anyway, you assert that the last sentence of the AUMF is "redundant, perhaps." But you say that this is not much for me to hang my hat on. Actually, however, there could scarcely be a more important rule of construction than this. Courts have been hanging their hats on it for centuries.
For example, John Marshall hung his hat on the surplusage argument in MARBURY v. MADISON, 5 U.S. 137 (1803): “The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.” And again in COHENS v. COM. OF VIRGINIA, 19 U.S. 264 (1821): “That would be, as was said by this Court in the case of Marbury v. Madison, to render the distributive clause 'mere SURPLUSAGE,' to make it 'form without substance.'” And again, in AMERICAN INS. CO. v. 356 BALES OF COTTON, 26 U.S. 511 (1828): “what could be more absurd than to decide, that the same force is to be given to those words as if they were not there.” And again, in FOSTER v. NEILSON, 27 U.S. 253 (1829): “the insertion of these words materially affects the construction of the article. They cannot be rejected as surplusage.”
And that was just Chief Justice Marshall!
The judiciary often determines the reasonableness of a search, even if everyone acknowledges that there is no warrant requirement. But you're correct that getting such matters into a courtroom can be especially difficult if the search is secret. How can judges evaluate the legality of any secret government activity? The usual answer is that some government official has to balk.
In the case of the NSA program, Bush gave lots of people an opportunity to balk. Besides many officials in the Justice Department and the Defense Department, there were eight ocngressional leaders, plus the lead judge of FISA, and any one of them could have balked. Looks like one of them finally did. So, now it looks like we'll get a court case and a judicial determination.
I see. So you think Congressional intent was that the President should evade judicial determination even where it had made statutes requiring judicial determinations, and if and when someone leaked (thus risking prosecution for violating secrecy), there might somehow arise a justiciable case or controversy (arising how, when the subjects are secret?) by which there could be a judicial determination of whether judicial determinations could legally be bypassed according to your strange interpretation.
Do I have that right?
I have been trying to research the AUMF legislative history for you. It was sparse, because there were no committee reports, no differing House/Senate versions and no conference report.
Some clear notion of congressional concern in the particular area you are interested in can be seen in a floor statement after the fact, on June 10, 2002, by Sen. Feingold:
Feingold went on to drive home the specific rationale for consultation established by the original War Powers Resolution.
The section on the War Powers Requirements thus was not novel to the the AUMF, but was modeled on the Gulf War authorization of 10 years before.
It is clear from Feingold's statement that members of Congress sought to reiterate clearly that they expected the consultation requirements of the War Powers Resolution to remain in effect, which the last sentence of the War Powers Requirements section did. The intent was to keep the executive explicitly on the hook for consultation.
This section, especially the last sentence which binds the executive, was hardly surplussage, but related directly to a specific intent of Congress. And it hardly seems related to electronic surveillance.
May we move on now?
Thank you for the link to this blog entry. I was laughing but wasn't quite sure if I should be crying."
Defending the Indefensible -- You like to mock and satirize what the President's domestic program is doing? What is so different from the bolg entry to which you refer, and what the President's NSA program is protecting of my father? Protecting architects of the system who happen to drug their chilren to molest and sexually abuse them, and then bash their heads against walls leaving them with traumatic brain injury? My case is real, unlike your mocked satire.
I would say that is a LOT worse than the shame of Paula Jones or Monica Lewinski. I was 14 years old when my father did this to me, and because he was such a mathematics, physics, and cryptography algorithm whiz, essential to national security, he s still walking free.
My life has been davastated, with no remedy.
The War Powers Resolution has to do with the President's authority to involve the military forces overseas in war or any other level of hostilities, right?
The AUMF has to do with the President's authority to use military force against those he deems responsible for 9/11, etc., and is meant to be the congressional authority the War Powers Resolution calls for. Right?
The last sentence clarifies that all the other requirements of the War Powers Resolution (the periodic reports, etc.) are still necessary, because otherwise the President could read the AUMF as superceding the War Powers Resolution (for the purposes of the wot), which would mean he could dispense with the other various requirements of the WPR.
Why must this be read to imply that all necessary and appropriate force means notwithstanding any other law? How does this make the WPR language surplusage?
The last sentence of the 2001 AUMF has a much longer history than you've indicated. For example, eight years before the 1991 Gulf War authorization, Congress provided as follows:
Multinational Force in Lebanon Resolution. Act Oct. 12, 1983, P.L. 98-119, 97 Stat. 805, Sec. 7(b). Obviously, when Congress wanted to ensure that a prior statute would not be superceded, it knew how to do so. Why do you suppose it is that Congress in 1983 took such care to safeguard the Lebanon Emergency Assistance Act, but in 2001 decided not to safeguard your 50 USC 1811?
You assert that the last sentence of the 2001 AUMF is "redundant, perhaps." Would I be pressing my luck by asking you to acknowledge that such a construction flies in the face of rules for interpreting statutes, going all the way back to John Marshall?
Anyway, I do appreciate your time, and you should go ahead and move on if you like. I can't resist paraphrasing Winston Churchill, who once said that man sometimes stumbles upon the truth, but he always picks himself up and moves on. :-)
I have no intent to mock you, nor to minimize any trauma you have been subjected to. With respect and sincere concern, what is at issue in the NSA surveillance controversy is not the sexual molestation of juveniles. (I might point out, however, that in an earlier thread on this topic, one of the commentators whose credibility has been impeached above did advocate the sexual mutilation of innocent juveniles if it would help to solicit intelligence.)
The War Powers Resolution has to do with the President's authority to involve the military forces overseas in war or any other level of hostilities, right? Yup.
The AUMF has to do with the President's authority to use military force against those he deems responsible for 9/11, etc., and is meant to be the congressional authority the War Powers Resolution calls for. Right? Yup.
The last sentence [of the AUMF] clarifies that all the other requirements of the War Powers Resolution (the periodic reports, etc.) are still necessary, because otherwise the President could read the AUMF as superceding the War Powers Resolution (for the purposes of the wot), which would mean he could dispense with the other various requirements of the WPR. Yup.
Why must this be read to imply that all necessary and appropriate force means notwithstanding any other law? Well, you just said that --- without the last sentence of the AUMF --- the President could act notwithstanding other requirements of the War Powers Resolution. It doesn't make sense to say that the President would be free of those other War Powers Act requirements, but not free of 50 USC 1811, for example.
How does this make the WPR language surplusage? First of all, the surplusage argument only applies to the last sentence of the AUMF, and not to the previous stuff in the AUMF regarding the War Powers Resolution. And, regarding the last sentence of the AUMF, I don't think that sentence is surplusage. However, Just an Observer has said that perhaps it is surplusage, because (as I understand him) the President would have been bound by all other requirements of the War Powers Resolution even if the AUMF did not contain that last sentence.
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.
Hinderaker Article
My post
Clearly, if some want to continue with their apoplectic invective of self-righteous rage, far be it for me to try to end their testosterone laced, chest thumping threats of harassment in the future.
A certain individual even suggested I should have changed nics to hide, to me that reveals more about that individual, because to do such a thing would be the ultimate act of cowardice, instead of facing the music. And that is apparently what this individual would do.
JaO,
I do have to wonder why you avoided commenting on those who cast insinuations about Bush and use Nazi comparisons. I have not seen one word from you when they have done so. Yet you see fit to attack my credibility on the basis I said some people could be biased ? Do you understand what such double standards reveal ? Is it because they share your same ideological point of view, so it is ok ? Why do they get a pass from you ? Enlighten us.
OK, you've lost me again. What does 50 USC 1811 have to do with the War Powers Resolution? They are not connected. Why does it not make sense to say that the President still has to consult with Congress under the WPR, but expect laws having nothing to do with using military force to remain in place?
OK, I got that part.
But somebody may have argued that the AUMF is ambiguous as to the other requirements of the WPR. The last sentence removes any doubt that might have been raised since the AUMF and the WPR deal with the same types of authority. You can't possibly mean that if Congress wants to make sure unrelated laws remain in force, it must specifically mention them all.
You really should work on your composition skills. You have too many extraneous 's' in that one short comment It is one incident, I assume you understand the difference between singular and plural, and I have done all the explaining and apologizing I am going to do. If it is not good enough for you, too bad. You must be guilty of my comment or it would not have caught your attention. Grow up and leave your playground mentality at home.
You are conflating "surplusage" with "redundancy". "Surplusage" means words that would have no legal effect. The clause you cite is not surplusage because it limits the provision in question to the requirements of the War Powers Act.
In contrast, there is no general rule against "redundancy", meaning that different provisions of federal law end up having the same effect in certain circumstances. Indeed, if there was something like a rule against redundancy, probably 99% of the US Code would disappear.
You say that the last sentence of the AUMF removes any doubt that might have been raised since the AUMF and the WPR deal with the same types of authority. But 50 USC 1811 explicitly deals with wartime, and purports to set a 15-day limit on wartime electronic surveillance. And the power to conduct electronic surveillance is incidental to the warmaking power. Of course I don't mean that if Congress wants to make sure all other war-related laws remain in force then Congress must specifically mention them all. But Congress could easily have said "all necessary and appropriate force consistent with existing law." Or Congress could have simply omitted the last five words of the AUMF.
It really does not matter whether I think the language was redundant or not. Now that I have done your research, I don't think there was any redundancy.
Congress can excercise its prerogative to pass redundant laws if it chooses, whether or not you think it is good form. Congressional intent trumps elegantly good form every time, and if Congress feels the need to reenact the same requirement time after time, to assert its position with a recalcitrant executive, it may do so.
As for why Congress chose to emphasize that the War Powers Requirements remained in effect, but did not single out FISA for similar treatment, there is a long history of congressional mistrust of the executive on the issue of wartime consultation. Congress was looking to preclude any future weasling over this issue by a president who might say, "Well, gee, this new resolution included no specific consultation requirements, and you forgot to say 'Simon says,' so that's why we didn't consult you."
By contrast, FISA was settled statutory law, including a specific wartime provision, and there was a 23-year history of compliance and implementation, thousands of court orders and no known cases of avoidance of such established procedures.
I honestly think the President acted in bad faith after the fact, asserting that AUMF had secretly repealed some of FISA's requirements, and it came as a great surprise last month to most members of Congress to hear the preposterous assertion that that was their intent all along. I doubt that Congress will ever trust this president again on that particular issue, but there was no substantial reason to doubt his good faith in 2001.
Speaking of good faith, I do not think you ever have dealt honestly with the language of section 1811 in reasoning what congressional intent was in 1978.
As we have seen from the historical record, the WWI and WWII declarations all included sweeping authorizing language. In 1978, Congress absolutely knew what such a sweeping declaration of war looked like, yet it included a specific provision specifying in advance what would happen in such a state of war. Yet that construction would be absurd if, as you assert, such general authorizing language itself would repeal FISA's specific provision.
I respect your legal reasoning in general, Andrew, but in this case I think you are reasoning as a partisan advocate, not as an objective analyst. I, too, am trying as best I can to pursue statutory theories that might let the President off the hook legally, and like Prof. Kerr I stop short right now from finding that the administration definitely acted illegally. But I think your methodology in this matter is results-oriented.
Part of composition is constructing a coherent argument, and not simply copy-pasting someone else's. The latter is often termed "plagiarism."
He further accuses, "You must be guilty of my comment or it would not have caught your attention." Speaking of composition skills, this doesn't even make sense. Guilty of your comment?
Flog the dead horse all you want, it is far more revealing about you and your playground mentality.
I will be specific for you, as there seems to be a comprehension problem as well, insert 'bandwagon jumping' for 'my comment'.
You know nothing of my ideological views, which I consider to be rather conservative. And I bear no grudge against this president on this issue. In fact, some of my posts have explored novel theories of how he might eventually be found to have acted lawfully, at least on technical grounds. But I will follow the facts and the law wherever they lead.
So take your spin elsewhere.
My issue with you is specifically related to your low ethical behavior on this blog. You sleep with your conscience, and I'll sleep with mine.
You say I'm conflating "surplusage" with "redundancy". Well, yes I suppose so. It's okay to conflate things that are basically the same.
Redundancy is a form of surplusage. Check out Black's Law Dictionary. The definition of "surplusage" includes "superfluous matter," and the definition of "redundancy" says "superfluous matter."
Medis, you say that the last sentnece of the 2001 AUMF is not surplusage because it limits the provision in question to the requirements of the War Powers Act. Are you saying that --- without the last sentence --- the 2001 AUMF would have required conformity with the requirements of all pre-existing statutes, without limitation? That seems very similar to what I've been saying.
There are at least three, not just two, ways in which the 2001 AUMF could be written such that it does not repeal any given existing law, including FISA. One way would be for it to specifically say that this given law was preserved. A second way would be for it to specifically say that all laws were preserved, which would necessarily apply to any given law (variations on this theme would involve specifically preserving a category of laws that includes the specific law in question).
But you are overlooking the simplest, and undoubtedly most commonly "used", way for a subsequent law not to repeal a given prior law. And that is simply to include nothing in the subsequent law that repeals this prior law.
So what? There are a lot of laws that mention wartime. Some require a declaration of war, some merely require hostilities. The War Powers Resolution does not necessarily have any effect on them.
That may be true, although I'm not aware of any source establishing that to be the case. But even if it is, so what? FISA applies during war.
I would think "consistent with existing law" would be implied, unless there is an actual contradiction between the new law and an existing one. And again, I don't understand why Congress would have to omit emphasis on the requirements of the WPR lest everybody think the rest of the U.S. Code has been abandoned.
But not all definitions of surplusage are equal to all definitions of redundancy.
I think I was quite clear about which definitions applied. The rule against surplusage means we should interpret all words as having a legal effect. That simply is not an issue here, because these words do have a legal effect: they limit the provision in question to the requirements of the War Powers Act, rendering 2(b)(2) neutral with respect to all other statutory requirements.
Your argument is basically that if the 2(a) of the AUMF repeals no statutory requirements (besides, perhaps, the requirements of the War Powers Act), then this provision in 2(b)(2) is "redundant" in that it doesn't matter whether or not 2(b)(2) is neutral with respect to other requirements.
But that does not render the 2(a) legally identical to 2(b)(2)--quite obviously, I might add. And that is because 2(a) does a lot more besides not repealing statutes. Indeed, as I noted, the fundamental fact you are missing is that a statute does not need to SAY that it is not repealing some prior statute. It just needs to be written in way that does not repeal the prior statute.
Unfortunately, we have discussed all this before and I know you are not going to give up on this argument. But I just wanted to note for the benefits of others that just because there is SOME redundancy between two provisions, does not mean they are ENTIRELY redundant. Hence, neither is "surplusage" within the relevant definition of "surplusage".
Thanks for your very good comments, and I'll think them over. Contrary to what you said, I didn't assert that the general authorizing language of WWII or WWI would have repealed FISA's specific provisions. Instead, I recall saying that the answer to that question is "ambiguous."
Anyway, I'll think about your most recent comment, which is interesting. I'm not mindlessly advocating for the administration here; IMHO, the administration's faulty arguments would render the exclusivity provision meaningless (and Medis is correct that "procedures in" FISA do not include procedures in the AUMF).
I don't think that you or Professor Kerr will be successful in finding any loopholes in FISA to get the President off the hook. What this all boils down to is what Congress meant by "all necessary and appropriate force." Did they mean the real thing, or did they have some technical legal thing in mind? Bush says he needed this limited NSA program to win, and if that's correct then the program is "necessary and appropriate." Let a court decide. I suspect that a court would grant the President broad discretion under the Necessary and Appropriate Clause of the AUMF, just like SCOTUS granted Congress broad discretion under the Necessary and Proper Clause (see McCulloch v. Maryland).
As far as the last sentence of the AUMF is concerned, you're saying that it was simply meant to drum a message into the President's head, and really didn't add any new content or meaning to the AUMF. I disagree. The place for berating the President and "sending a message" would have been in the "whereas" clauses of the AUMF. And there were plenty of those.
Out of curiousity, do you think Congress intended the 2001 AUMF to render the UCMJ (another prior statute) discretionary?
Thanks,
debater.
No I don't think Congress intended the 2001 AUMF to render the UCMJ (another prior statute) discretionary. The reason is that the UCMJ plainly does not prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda. In contrast, FISA'a warrant requirement for all international electronic surveillance would trigger the "probable cause" requirement of the Fourth Amendment, and that could prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda.
That doesn't answer my question. I take you to be saying that in substance, violating the UCMJ would never be "necessary and appropriate" (although I am not sure why you are so confident--what if, for example, the President suspected Al Qaeda had recruited agents in the armed forces--why couldn't he argue that the procedures in the UCMJ were too restrictive as he went on a hunt for these possible agents?). But that could just mean that in your view, the President would be abusing his discretion under the 2001 AUMF if he ordered the military to violate the UCMJ.
So, my question is not whether such a decision would be an abuse of discretion. Rather, my question is whether Congress intended the UCMJ to be discretionary in the first place.
And honestly, I don't see how you can distinguish the UCMJ from FISA in that sense, if your "surplusage" argument implies that ALL other federal statutes are now discretionary.
Thank you for your kind reply. I honestly mean no disrespect.
Thinking about your last comment, I think that when there are inter-branch disputes, such as over war powers, recent history with both parties has shown that Congress will hammer home its intent in more than just whereas clauses or non-bindig language. IIRC, no president has actually conceded that the War Powers Resolution has constitutional teeth, so the Congress periodically renews its claim lest it be deemed to have abandoned it.
I think Bush has now -- after the fact -- extended that aggressive attitude toward the field of foreign intelligence surveillance. Yes, other presidents have tested the boundaries, but he has overtly stuck his finger in the eye of the other two branches.
In such disputes, SCOTUS traditionally avoids jumping in to referee, rather hoping that the political branches will work it out.
It may well be that the next step in this dance is for Congress -- despite its good-faith belief that it already has spoken -- may take a redundant step on this specific issue. It will say, in effect, "Which part of no did you not understand? Here is some even more specific language. Defy it only if you want a constitutional crisis."
For example, the Senate may attach an amendment to the USA-PATRIOT Act renewal reaffirming explicitly that the AUMF did not undo any FISA requirements. I think that would not only be appropriate, it may be what the courts would expect before they were willing to adjudicate the spat.
A more pure approach, with Congress refusing to restate its will only because it had already been stated, could only be resolved in impeachment court. I don't believe the Constitution forces us to go there.
I would ask that we forgive KMAJ for his mistake. He committed a enormous fault when conducting an intellectual debate, but that is in the past. He admitted a mistake, even if it is not to the specific egregious act. The reason I would suggest forgiving him is because it is interfering with the debate over the legality of the issue at hand. If KMAJ makes a similar mistake or a person agrees with him without understanding his record on this blog, then bring it up again, but now I think it is harming the debate.
This discussion reminds me of the movie Pulp Fiction:
Vincent: Jules haven't you ever heard the philosophy that once a man admits a mistake, he is immediately forgiven.
Jules: That [person] wasn't picking up little ity-bity pieces of skull and brain.
Yet even with that, Jules does forgive Vincent. I would say shooting somebody in the face in a car in broad daylight is worse than any action taken by KMAJ in this blog. While it is true that he did not admit to the specific act, let's just assume he did and move on.
Noah
That raises the interesting intersection between this issue and the McCain Amendment signing statment issue. What if the President signed a renewal of the USA-PATRIOT Act containing a "clarification" of FISA in a similar fashion? It would be interesting--to say the least--to see how Congress reacted.
I think my tone has not been antagonistic or uncivil regarding opposing opinions on this case. It has been as measured as yours has. In fact, my main premise has been that this will take another court ruling to sort out the jumbled mass of opinions and interpretations on both sides.
It was one incident and I apologized for it, what do you want, blood ?
I notice you still avoid addressing the other 'mudslinging', which was not part of my mistake. Are you trying to say the other mudslinging is ethical ? I can't think of anything more offensive and abhorrent than Nazi references. It is not spin, it is fact, regardless of your ideological leanings. If you are going to specify opining about plausible bias as unethical, but say nothing when Nazi references are thrown about, it is a double standard.
I would refer you to the definition in 50 USC 1801(n):
To make my UCMJ example more specific, consider this Article:
"ART. 106. SPIES
Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the Unites States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death."
Do accused spies actually have the right to a trial by court-martial or military commission? Or does the 2001 AUMF make that issue discretionary?
Again, it seems to me this is just the same basic issue as FISA (making the President comply with certain procedures before doing what he otherwise has the authority to do).
I am still waiting for a retraction of your unfounded attacks on the ethics of 1) the authors of the CRS memorandum and 2) Judge Robertson.