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January 04, 2006

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Andrew Hyman

Just a brief comment to this interesting post. Professor Stone wrote, "When there is an apparent conflict between a specific law and a general law, the specific law governs. Clearly, FISA is the specific law in this context."

It's true that FISA is narrowly focussed on surveillance issues, but the AUMF is also narrowly focussed --- on the perpetrators of the September 11 attacks (i.e. focussed on those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"). So, if we were looking at a Venn diagram, these two statutes would overlap, rather than one statute covering material that is a subset of material covered by the other statute.

Of course, even if FISA were the specific law and AUMF the general law, there would still be other rules of construction in play. For example, which statute is later in time, et cetera.

ekf

One comment with respect to the following (apologies for not formatting more effectively -- I can't get html coding to work):

"The AUMF authorized the President 'to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States.' Although the AUMF certainly gives the President certain powers, for example, the power to invade Iraq, it did not in any way amend FISA."

It seems to me that now we know that the president's determination of any connection between Iraq and the attacks of September 11 was almost certainly in bad faith (or at least reckless as to the veracity of the information that formed the basis for such a determination), the invasion of Iraq sounds like it might not be justified by the AUMF. Perhaps the language is too broad and deferential with respect to the determination by the Executive, and therefore an expectation of the determination being in good faith is just the corporate lawyer in me talking, but the certainty with which you note the justification seemed a bit strong given the current public knowledge with respect to the intelligence gathering to form a connection between Hussein and the September 11th attacks. In the scheme of things, I won't hold my breath that such an assertion would have any traction as a political matter, so it may not even deserve commentary with respect to its legal persuasiveness, but the comment just stuck out a bit.

In any event, I appreciate the dissection of FISA in the context of the warrantless searches. It's depressing as hell that smart, well-meaning people think it's a tough call whether or not Bush violated the law. Maybe we don't care about the rule of law anymore because of terrorism, which would at least be a perspective that would ring consistent with the approach to the NSA wiretaps. Maybe the law should be changed. But the approaches to legally justify the warrantless wiretaps -- they fail my laugh test and, alas, my cry test too.

To briefly note with respect to two of Andrew Hyman's comments: (1) the AUMF is specific in target (9/11 perps) but general in the powers granted (all means necessary), whereas FISA is general in target (suspects) and specific in the powers granted (surveillance w/FISA warrant); seems to me those distinctions make FISA the more specific law, because in a Constitutional setting it seems more reasonable to consider specificity with respect to the ways in which the branches of government relate to each other, rather than the targets about whom action may be taken as a result of a power delegation or restriction. I'll see if Professor Stone weighs in, as I'll freely admit to mine not being a scholarly-informed judgment; and, (2) if I recall correctly, FISA was amended subsequent to the AUMF to allow more time to obtain post-wiretap warrants; not dispositive, but FYI.

Andrew Hyman

Just to clarify, there were two separate resolutions authorizing use of force. In September of 2001 there was an "Authorization for Use of Military Force." Then, in October of 2002, there was an "Authorization for the Use of Military Force Against Iraq."

The 2001 AUMF did not confer power to invade Iraq, but rather was directed at te perpetrators of 9/11. I don't think anyone's arguing that the 2001 AUMF gave the President power to invade Iraq. The 2002 AUMF did that.

Armando

Andrew:


Here is a rule of statutory construction for you:

"[It is a] cardinal rule that repeals by implication are not favored, and will not be found unless an intent to repeal is clear and manifest. . . . In the absence of an affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. In other words, where the two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective."

Who made that argumeny? Bush's Solicitor General Ted Olson in 2002. The Court accepted it.

It is really time to stop this charade.

Thomas

Professor Stone says "the Court made clear that the President does not have the authority to hold such individuals indefinitely."

Actually, what the Court made clear is that AUMF doesn't provide the president that authority. The Court put the Article II arguments to one side before examining and deciding the case on AUMF grounds.

Professor Stone's assertion that the president's power is "at its lowest ebb" in this circumstance isn't helpful, because it begs the question. The issue is whether AUMF or FISA (or both) are applicable and authorize or prohibit the actions taken, and simply asserting that the president's power is at its lowest ebb is to say that FISA applies, not AUMF.

Andrew Hyman

Armando, you are entirely correct that implied repeal are disfavored. That is an important rule of construction that is relevant here, along with other rules of construction. There's also the rule of specific statutes being favored over general ones, the rule of statutes later in time being favored over those earlier in time, the rule that a statute should not be construed to render any part of it surplusage, and the rule that statutes are to be construed so as to avoid serious constitutional questions. All of these rules (and more) are applicable in the present controversy. It's not a simple matter, and I for one am not trying to perpetrate a "charade."

Regarding the doctine of implied repeal, and the rule that the latest statute should govern, and the rule that the more specific statute should govern, you might be interested in the dissent by Justice Stevens in 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."

Justice Stevens made some excellent points.

Dan McGuire

The discussion of the AUMF/FISA intersection is incomplete insofar as it ignores Hamdi. Hamdi is not an inherent power case. It is an AUMF vs. 18 U.S.C. s 4001 case. The Court unambiguously declined to address the inherent power issue:

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF."

Hamdi held that the AUMF (i) allowed the President to detain US Citizens an enemy combatants notwithstanding 18 U.S.C. s 4001, which specifically prohibits detention absent authorization from Congress; "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress". 18 U.S.C. s 4001(a), but (ii) the AUMF did not suspend habeas corpus, so "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker"

Nothing in the AUMF expressly trumps 4001, yet under Hamdi the AUMF trumps it, and "it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here"

The better questions under Hamdi are whether the actions by the President are close enough to detention to qualify as to be a necessary incident to the use of force such hat the AUMF trumps FISA and, if so, whether FISA is more like the habeas corpus rights the AUMF could not override. Professor Kerr has some very good analysis of why under Hamdi te AUMF doesn't justify the wiretapping at issue here. Some have tried, with less success, to dissect FISA in a manner that would distinguish it from 4001 by arguing that the only act of Congress that could qualify under FISA is FISA itself. The argument that the AUMF doesn't override FISA because FISA deals with this type of situation is much more persuasive.

While I tend to side with those who view the wiretapping as impermissible under FISA and beyond the scope of the President's inherent power, I'm surprised by the number of people who think this is an easy question. Nobody on either side of the table has presented a bullet proof analysis. I'm not sure why there are so many who view this as an easy question in light of the absence of a comprehensive, compelling argument from either camp. My guess is that those who fervently defend the program think the President should have the authority, so they ignore the serious question about whether he in fact has the authority. Those who call the arguments in favor of the wiretapping a "charade" likely either (i) hate the President so they want to spin this as clearly over the line to make a case for impeachment, etc. or (ii) loathe the perceived violation of civil rights so they breathlessly oppose the program despite the arguments in favor of its legality. Both extremes are wrong.

Rick A Hyatt

Conserning the "NSA Whisteblower," I am he. Requesting assistance in finding an appropriate attorney.
Please email me, or phone at 307 324 8430. For verification, my name is Rick Hyatt, 621 West Buffalo, WY 82301.
Please visit my blog at http://www.bloglines.com/blog/RickAHyatt and/or my website at http://www.rickhyatt.freeservers.com.
To put it all in a nutshell, it's obvious that there's much more behind all the current White House scandals that the public's being told. The common element is myself, my containerization since 1978 by FISA, and what I know of Gary Condit and Dick Cheney from my Military Intelligence service before that.
I witnessed the Condits dispose of a mutilated body overseas and was sworn to secrecy about it. I know about Dick Cheney's role in the "Office Of Economic Opportunity" under Director of the CIA, George Bush.
So, I've went, as presented to Judges, at least, from a quasi "Foreign Espionage Agent" in 1978 to a "Homocidal Terrorist" before Judge Komo/HI in 1995.
"NSA Surveillance" is how they garner businesses, government agencies, financial institutions, and civic groups to isolate and attempt to silence a person as myself who knows too much.
It basically also has to do with the rise and fall of Cheney in a known espionage mode that culminated in 9/11, another timing of these special Executive powers, and the current beginnings of the wide-spread corruption unveiled publically.
If you know people in the Justice Department, I obviously would like to hear quickly from them, and to disregard this new Jan. 31st extention.
Again, I am that "NSA Whistleblower." I am following direct military orders given to me in the past to do as much, as well. I signed a Warrant Officer Contract with the Director in 1977, saving up all paychecks, benefits, etc., due to the nature of this operation. I'd like to get it enforced, obviously.
I'd appreciate your assistance, if possible.
Rick A Hyatt

Rick A Hyatt

Please correct that typo! "Concerning!" Tx

Andrew Hyman

I have not heard any professor address the following simple surplusage argument, which seems very persuasive to me. I'd be interested in what you professors think about it.

The AUMF authorizes "all ncessary and appropriate force" to defeat Al Qaeda. If that authorization is construed to mean "all necessary and appropriate force consistent with all prior applicable statutes," then doesn't that render the last sentence of the AUMF completely superfluous? The last sentence says that nothing in the AUMF supercedes any requirement of the War Powers Act.

John Lederer

"There is no question but that the Bush spy program directly and unequivocally violated FISA."

So that I may follow your reasoning could you explain why electronic surveillance as defined by FISA is involved?

I might note that (1) submarine fiber optic cables, which are principally owned and operated by non-common carriers carry most international traffic and (2) the monitoring and interception appears to have been accomplished by alterations in the programming of the switches that serve submarine cables.

JSFM

I feel obliged to pass this along--I'd love to hear what you all have to say about the sealed case argument:

http://radioblogger.com/#001273

Also, Mr. Hyman, the War Powers act requires that Congress authorize the President's military actions within 60 days of going to war. The AUMF was that authorization.

Andrew Hyman

Thanks JSFM, I'm aware of that. Here's Section 2 of the AUMF:

"SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

"(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or 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.

"(b) War Powers Resolution Requirements-

"(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

"(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution."

The point I was trying to make is that the last sentence ("Nothing in this resolution supercedes any requirement of the War Powers Resolution") would be surplusage if the phrase "all necessary and appropriate force" is construed to mean "all necessary and appropriate force consistent with all prior applicable statutes." This is why it seems clear to me that the AUMF was indeed intended to supercede at least some prior statutes, to the extent that those statutes prevent the use of all necessary and appropriate force. I still have not heard any professors address this surplusage argument.

Dan McGuire

Mr. Hyman,
The AUMF also contains a specific reference to it constituting "specific statutory authorization" under the War Powers Act, whereas it contains no such statment with respect to FISA. Hence, while I think you are correct that the issue is whether the AUMF constitues an Act of Congress for purposes of FISA, I think that would be true with or without the War Powers Act references, as there is one positive reference for the President (2(b)(2)) and one negative one (2(b)(1)).

Andrew Hyman

Mr. McGuire:

No, I'm not saying that the issue is whether the AUMF constitues an Act of Congress for purposes of FISA. Regardless, the AUMF supercedes FISA. The AUMF was enacted later in time than FISA, neither the AUMF nor FISA can truly be regarded as more general or more specific than the other, and the AUMF must be construed so as not to render its last sentence surplusage. Again, the last sentence of the AUMF ("Nothing in this resolution supercedes any requirement of the War Powers Resolution") would be surplusage if the phrase "all necessary and appropriate force" is construed to mean "all necessary and appropriate force consistent with all prior applicable statutes."

The Administration is making what I regard to be a rather byzantine argument that the AUMF and FISA can be construed so they are consistent with each other and with the NSA program. I'm very skeptical about that. Instead, as Professor Stone mentioned, I'm one of those who believe that the AUMF "implicitly overrode FISA."

Nataly


I've read with pleasure. Maybe it's offtopic, but i just wanted to say, that it's really interesting to read everything this... You discuss here a lot of interesting things on different useful themes. Thanks for that =)

RandallS

Prof. Stone
Re: Orginal Post January 2
Reply: The People's right to know: 'Trust but Digitally Verify'
Congress should move to create an Independent Agency to digitally monitor the Executive Branch Regarless of the Legality of NSA Program
Embedded in your article were these key words:

"Absent (at the very least) a scrupulously designed and applied set of internal safeguards, the Bush spy program – a secret program – should be held to violate the Fourth Amendment."

Of course, whether the President's NSA directive is deemed legitimate Constitutionally or statutorily is of paramount import. Regardless of the outcome however, two salient facts will remain:
(1.) Until a 'whistleblower' leaked the NSA activity, Congress, except for a reported eight members of the intelligence o/s committees, '...could not know what we did not know...' about the actual level of executive digital surveillance. This continues to be the case.
(2.) The President's unilateral act and others that may similar or contain the potential to be similar, has vested new actual or potential power in the Exec branch technically not subject to traditional Congressional oversight because of the diffuse and voluminous nature of digital surveillance.
So what next?

In more secure times, the two other co-branches likely would take countervailing measures to roll back the President's reach. However, under the present threat of terror, and the derivative political atmosphere, (which has over-terrorized most), the other two branches likely will go to greater lengths than usual to not disapprove of the Presidents act. For instance, consciously, or unconsciously, the Supremes are likely to become less philosophically driven, and more "outcome determinative" in their review during time of war. The NSA surveillance will go forward. A caveat will likely be imposed however.

To neutralize the relative imbalance created by the President's reach, Congress will of necessity likely look to take similar acts, and the Court will not disapprove. Net result: The 3 branches will maintain approximately the same power relative to each other, albeit at a substantially higher level of aggregate and respective branch power. This is as it should be in times of war or quasi-war. But what acts are available to Congress that should be taken?

Congress presently is at an information disadvantage, and must rely on goodwill or whistleblowers to learn about the actual level of executive digital surveillance so they can perform mandatory Constitutional role of oversight. As presently configured, eight intelligence over-sight Committee members, intelligent though they may be & even if they were allowed to bring a pen and paper, can hardly be expected to properly audit diffuse, encrypted digital activity of executive branch super-computers operating continuously at teraflop speeds.

War or no war, Congress should not continue to entrust the integrity of the Constitution to the goodwill of the Executive Branch, nor to the altruism of pool of executive branch employees, many whom likely have been sub-contracted for and outsourced overseas.

It is time for Congress to create an independent agency similar in legal construct to NASA or the Federal Reserve Board: Not under direct control of the Executive Branch or Congress, reports to Congress, not subject to removal, for defined term limits, etc. Purpose would be to use computers and software to continuously digitally audit the nature, methods and scope of executive branch digital surveillance activity for comport with the Constitution and derivative Acts of Congress. After all, what the NSA is doing is "hacking." Digital audit trail programs that report summary data about digital activity outside parameters can accomplish this purpose. Certainly this would be a quantum leap over passive dependent position Congress presently holds. Consider the following reasons in further support:

1.) The nature of the legislative and judicial power: Neither branch is allowed constitutionally to control capacity to directly audit executive digital action to the letter as well as the spirit of Congressioanl Acts and Constitution. (Passive role)
2.) The nature of the inexorable growth rate of science of surveillance, and ability to use it without knowledge;
3.) The history of Executive quantum reaches in times of "war," and the general acquiescence of the Congress, the Court's and the people to such acts;
4.) The nature of the threat posed from terrorists: For executive branch members so inclined, the exigencies posed by terrorists will never end;
Thoughts appreciated.
Thanks.
Randall S.

Joey

I think we can all agree that Nixon was a rat but FISA was a result of more than Just Nixon's abuses. LBJ was the king of wiretaps and he put Nixon to shame:

http://www.nationalreview.com/comment/edwards200506070751.asp

LBJ wrote the book on abusing wiretaps, the CIA, and the FBI. I know, I know, we're not supposed to talk about that because he was a democrat...

David Sucher

Professor Hyman.

You write that ' "I'm one of those who believe that the AUMF "implicitly overrode FISA." '

Are you suggesting that Congress actually consciously intended to do so? Do you think that it crossed anyone's mind that AUMF repealed part of FISA? Do any of the debates, committee reports, public statements, etc etc suggest that such override of FISA was even considered?

If so I would have thought that the Administration would have brought those facts to the fore at the very first instance as they are an obvious trump card.

It sounds to me as if you are simply reading-in such a repeal as a matter of your own preference. Maybe you are meaning to say that you believe that the AUMF should be read to override FISA? Then again, maybe you have the goods.

Andrew Hyman

To David Sucher:

First off, I'm not a professor, although I've met many. :-)

In answer to your question, yes I think that Congress consciously intended to override FISA, but only in the context of the conflict with Al Qaeda, and only to the extent necessary for the President to use all necessary and appropriate force to defeat Al Qaeda. It was on many people's minds that the AUMF should give the President the necessary and appropriate authority to get the job done.

You ask for proof in the debates, committee reports, public statements, etc that an override of FISA was considered. But that’s giving me a very difficult assignment, because as far as I’m aware there were no committee reports, no differing House/Senate versions, and no conference report, for the 2001 AUMF. Therefore, I have relied upon the actual text of the AUMF.

The last sentence of the AUMF says, “Nothing in this resolution supercedes any requirement of the War Powers Resolution.” Mr. Sucher, do you believe that the President would have been equally bound by the War Powers Resolution even if that sentence had not been included at the end of the AUMF? If so, then you’re saying that last sentence is surplusage.

Such a notion has been condemned by the U.S. Supreme Court for hundreds of years, starting with the great Chief Justice John Marshall 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 here’s Marshall 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 here’s Marshall 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 here’s Marshall 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.”

The last sentence of the 2001 AUMF has a long history. It’s very similar to the following provision from 22 years ago:

“Nothing in this joint resolution modifies, limits, or supersedes any provision of the War Powers Resolution or the requirement of section 4(a) of the Lebanon Emergency Assistance Act of 1983 [unclassified], relating to congressional authorization for any substantial expansion in the number or role of United States Armed Forces in Lebanon.”
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 FISA?

David Sucher

Andrew Hyman.

It seems you know these laws better than I do and can cite them in ways to befuddle me. My appeal is to commonsense.

Just to be clear, you are simply teasing out your view? Using historical analogies? And "reasoning?" You believe something seemingly as major as "...Congress consciously intended to override FISA, but only in the context of the conflict with Al Qaeda..." Yet you and people who agree with you can offer no discussion, hearing statements, memos, speeches by officials, articles in newspapers, blog posts, even Drudge, etc etc --- no background indicia of specific intent anywhere -- to buttress your view?

Now I am not saying that I know the facts here. I don't. But it appears to me that you are hanging what appears to be a significant change in the law on a very thin reed. Do you understand how that appears?

Btw, if it is so obvious that Congress clearly intended to modify FISA, why has not the Administration offered the facts to paint that picture? It would seem to me that the President would say -- if he could -- something like "Look, we discussed this issue with Congress here and here. So-and-so reporter even mentioned it an article." And Congressional leaders would come forth and say "Yes we were briefed and that was our understanding." But Bush has said no such thing, to my knowledge.

Mr. Hyman, if you are going to offer Congressional intent as your argument, you need some specific manifestation of that intent. No? These events happened within the last 4 years -- they are not ancient history with long-dead actors. Surely someone from Congress will come forward to support your view. No?

Andrew Hyman

Mr. Sucher:

Frankly, I'm almost in the dark as you about many technical and legal details of this program, and so I have no choice but to use the words of the statute, the opinions of the Supreme Court, and common sense. Congress authorized the President in the 2001 AUMF to use "all necessary and appropriate force" against Al Qaeda.

IF the President can prove (1) that his surveillance program is a fundamental incident of war, and IF he can prove (2) that the Fourth Amendment was not violated, and IF he can prove (3) that not having the surveillance program would have prevented the United States from taking necessary and appropriate action against Al Qaeda, then I frankly don't see how the surveillance program could be considered unauthorized by the AUMF. Can you concede that the President might be able to prove these three things? By provbing them, wouldn't he be proving that the surveillance program was unauthorized by the AUMF?

Andrew Hyman

Last sentence should read: By proving them, wouldn't he be proving that the surveillance program was authorized by the AUMF?

David Sucher

It seems to me, Mr. Hyman, that you have shifted ground 180 degrees and are now placing the burden on the President to demonstrate a host of things. So maybe we agree after all.

Of course the President doesn't appear to have done any of the things you mention but has simply asserted that he has the power.

But when/if the President starts to subject his own actions to the tests you outline then he has solved the problem: he is conceding that he is subject to the rule of law.

(Btw, whether any of those tests prove that the AUMF authorized warrantless wiretaps may not be exactly answered by your tests but it's a pretty good start on having a President who sees himself as subject to the laws.)

Dawn

Interesting read since I am doing a paper for school on the Bush Administrations illegal wiretapping program. I am a much simpler person than others who wrote, but as a citizen of U.S, I believe our government is losing its checks and balances that were put in place so that there would be less abuse of power. Bush is an employee of THE PEOPLE. The same people who are guaranteed unalienable rights. In Katz vs.United States, Justice Douglas and Brennon state in a concurring opinion that "the executive branch, including the President, has no grounds to engage in electronic surveillance without a warrant, even in matters of national security." It seems that the President and NSA are sidestepping due process guaranteed to AlL Americans. Since Congress can't pass laws that conflict with the Constitution, wouldn't you think that Bush is interpreting AUMF to his own bias? Once again, I am just a simple history student, Dawn

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