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December 19, 2005


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Frank Howland

It seems probable that the administration did not seek FISA authorization for the surveillance because it thought it would not get approval from the special court. Approval, including ex post approval, is apparently pretty easy to obtain. Doesn't that suggest that the surveillance went beyond "those reasonably believed to be associated with Al Qaeda and its affiliates"?


While the AUMF may arguably provide a plausible and backward-looking fig leaf for the President's actions, other revelations about domestic spying indicate that the efforts have significantly gone beyond examining the communications of suspected Al Queda operatives. Anti-war protesters, for example, have been the subject of a substantial amount of surveillance subsequent to September 11 despite there being less of a link between such protesters and September 11 than between Saddam Hussein and September 11.

So, there seem to be two problems with the domestic spying as conducted by the Bush administration.

The first is whether or not the AUMF was at all intended to cover domestic surveillance without even the oversight/virtual rubber stamp of a FISA court. A plain language read might indicate its intent to approve such actions because such language is almost insanely broad, although it would be interesting to know whether such power was ever discussed by Congress at the time. More importantly, though, the lowering the bar for wiretaps in the USA PATRIOT Act from traditional court's orders to FISA courts seems to contradict the claimed authorization in the AUMF for such entirely court-free wiretaps. After all, why would the executive seek a lesser power in the USA PATRIOT Act if it has already been granted a greater power in the AUMF? The two acts together appear to read as though the AUMF did not intend to address the wiretap issue at all, requiring the USA PATRIOT Act to pick up the "slack" in streamlining the communications surveillance.

The second problem with the Bush administration's domestic spying efforts is that other domestic surveillance efforts since September 11 claiming to be in the service of protecting the U.S. from terrorism have often roped in such non-Al-Queda types as Quakers, hippies and environmentalists. Why, when the same anti-Al-Queda argument is used here to support this completely unaccountable surveillance effort, should we assume that -- this time -- they are telling the truth about the targets of surveillance? The only answer appears to be the "trust me" answer given with a continually declining amount of credibility from the President. The talking points of Secretary Rice were especially unconvincing in this regard on "Meet the Press," with her coyness about not being a lawyer and her intimation that the targets might not have actually been American citizens in an attempt to further cloud the issue. Ultimately, if the administration requires the citizens to trust it, its members have to have talking points that do not in their double-talk and obfuscation betray a lack of trustworthiness.

I believe more discussion needs to be had with respect to the degree to which the AUMF really was intended to authorize domestic spying on American citizens without even the most elementary FISA court oversight, and even more work needs to be done to discern whether or not the administration has stayed within the boundaries of only conducting surveillance on people with ties to Al Queda. I am pessimistic with respect to the latter and especially pessimistic with respect to there being any consequences for yet another unwarranted and arrogant expansion of the executive under the cover of such lame fig leaves as those given by the administration in this case.


We're often told by civil libertarians that the government is force and that force is its chief tool in trade. Jailing people or threatening to do so is undeniably an act of force. But so too is the seizing of personal communications. Why does this matter?

If we're textualists of one kind or another, and we acknowledge the authorization to conduct military operations through force carries with it certain implied powers--the power to select which units go where, the power to create prison camps, the power to kill, bomb, and interrogate--then does not the greater, include the lesser? That is, does the power to bomb not include within it also the power to intercept emails?

At least two principles of statutory construction at work here, combined with an overarching issue of philosophical and linguistic integrity. The first principle is that the later statute amends earlier statutes to the extent they conflict. The other principle of interpretation is that war and foreign policy powers are construed broadly to permit presidential authority and discretion in the realm of international relations and warmaking. The final principle is not so much one of statory construction as one of philosophical honesty and good faith; if one decries the use of warrantless international surveillance because it is an act of force and ordinarily ultra vires, why is such force not permitted by the broad permission of "force" authorized in the September 18th Congressional authorization authorizing a miltiary response to the 9/11 attacks?

Arguably another principle could save the day for those that oppose the President: the princple that more specific legislation controls when it is in conflict with general legislation. Under this reading, one might say that all force not governed by other statutes is allowed, but in those areas covered by statutes and constitutional provisions--i.e., Padilla's internment--then the more specific, preexisting legislation or constitutional statement should control in the absence of alternatives. But the specificity principle could also be brought to bear in defense of the President's actions; after all, FISA is a generic intelligence law, whereas the President's authorization of certain types of wiretapping are Al Qaeda and 9/11 specific.

I've really not thought about this rigorously enough to say the President is definitely right. I can say, however, that based on well established principles of statutory construction, he is not definitely wrong.

Seth Weinberger

As I note in a blog post of my own (lawofnations.blogspot.com/2005/12/declaring-war-and-executive-power.html), there is a critical and crucially important distinction between an authorization to use force and a formal declaration of war. A declaration of war, at least in the modern "total war" era, is an acknowledgement by Congress that the president needs to mobilize or control the domestic sphere. All of the declarations of war in the 20th century contained specific language -- stating that "all the resources of the country are pledged" by Congress -- making this clear. Absent that language, an authorization of force is a much more narrow allowance for the president to pursue military objectives. The difference is whether the president is granted legislative powers over US citizens. As was made clear in Youngstown Sheet & Tube Co. v. Sawyer (1952), lacking such language, the president may not take fundamentally legislative actions in the domestic arena, even if such actions can be seen as integral to the military operation underway. Using the NSA to spy on American citizens without a warrant seems essentially legislative, and thus illegal, in the absence of a formal declaration of war with specific language ceding legislative powers to the president.

Al Alschuler

As revised after -- I said after -- 9/11, FISA comprehensively regulates wiretapping to gather foreign security intelligence. Under this statute, the Attorney General may in some situations authorize wiretapping without a court order for as much as a year, provided no "U.S. person" is likely to be overheard. A court may approve the wiretap of a "U.S. person" simply on a showing of probable cause to believe that the target of the tap is an agent of a foreign power (a term defined to include not only Al Qaeda and other terrorist groups but also any foreign political organization). If an emergency precludes going to court, the Attorney General may wiretap for as much as 72 hours without a warrant. An official who wiretaps without statutory authorization is guilty of a felony punishable by as much as five years in prison.

When Congress approved the AUMF, it meant to authorize the war in Afghanistan. The Supreme Court concluded in Hamdi that it also meant to authorize our forces to capture enemy combatants within Afghanistan and hold them as prisoners. Surely, however, no one in Congress imagined that its resolution would amend FISA or authorize the President to abandon this statute's comprehensive scheme regulating the wiretapping of U.S. citizens inside the U.S. The President's argument that the AUMF authorized scrapping FISA is ludicrous, as is his argument that he needed to scrap FISA because sometimes there isn't enough time to go to court, as is his argument that blowing the whistle on his felony will tip off the enemy to the fact that they're being overheard and thereby endanger American lives. Some issues are easy, and lawyers who care about the rule of law ought simply to denounce the criminal in the White House.


Can it truly be reasonably accepted that wiretapping not only those whose connection to AQ is a simple phone call or whose name was in a phone book found in the resident of a known or suspected terrorist? If so, is it also reasonable to wiretap those who have connection to that individual? To what extent could this be taken reasonably?

Would the internment of all Americans of Arab descent be permissible under the AUMF? If not, why is that different than the violation of 4th Amendment rights or FISA?

In the conclusion of the Coram Nobis of Korematsu v. United States the court stated:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

Also, if the President had this power under the AUMF, why did he push to have the Patriot Act passed and why does he continue to push for its renewal? If he has this authority, it stand the Patriot Act would not be necessary.

Alan Meese

I think focusing on the AUMF as such does not really capture the President's best argument. The AUMF authorized the President to undertake hostilities against an enemy. When undertaking these hostilities, the President is acting as Commander-In-Chief. The Commander-In-Chief power, which can be exercised without a formal declaration of war, includes the power to gather intelligence to execute military operations, including operatins against enemies who have invaded the United States.

So, the (best) argument is not really that the AUMF itself (partly) repealed FISA, it is instead that Congress has no power to override the President's Commander-in-Chief powers, once it has authorized him to act as such. Having declared war on Japan, Congress could not have required the President to obtain a warrant before bombing Japanese positions. Nor could Congress tell the President to fire a general or not to fire a general, etc. Ditto for the authorized use of force against Iraq in 1991.

Note that the FISA Appellate court itself recognized that the President has inherent powers that FISA cannot abrogate, although the language is dicta.

I explain this argument in much greater detail in the first "Comment" to Professor Stone's "King George" post. See


Alan Meese

Let me also add two things:

1. Gathering military intelligence pursuant to an authorization of force is, in my view, an exercise of the power as Commander-in-Chief and not legislative. It does not matter that the enemies are in this country, or that they happen to be American citizens. If, during the Korean War, the President suspected that an American citizen in Hawaii was sending signals to a Chinese submarine hoping to sink a departing fleet, I don't think the effort to listen in on the conversation would be "legislative." At the same time, I realize that trying to pigeonhole these things might be a spurious exercise and might be answering the wrong question.

2. Presumably the President would argue, consistent with the dicta in In re Sealed Case, 310 F.3d 717, 742 (F.I.S. Ct. of Rev. 2002) that Congress cannot, via FISA prevent him from conducting otherwise reasonable searches and thereby interfere with his powers as Commander-in-Chief. The President could argue that allowing Congress to interfere with the President's powers would contravene Article II and thus offend the Rule of Law.

Andrew Hyman

Here's the saving clause of the AUMF: "Nothing in this resolution supercedes any requirement of the War Powers Resolution."

It's a maxim in the construction of statutes that an express exception, exemption, or saving clause excludes other exceptions. Where there are express exceptions these comprise the only limitations on the operation of a statute and no other exception will be implied. (Sutherland on Statutory Construction, Fourth Edition, Vol. 2A, p. 90). So, isn't it improper to say that FISA includes an exception to the presidential power that would otherwise be inferred from the AUMF?

Terry Gain

Venturing into politics Frank Howland states:

It seems probable that the administration did not seek FISA authorization for the surveillance because it thought it would not get approval from the special court. Approval, including ex post approval, is apparently pretty easy to obtain. Doesn't that suggest that the surveillance went beyond "those reasonably believed to be associated with Al Qaeda and its affiliates"?

I agree with most of Mr. Howlands words but completely disagree with his thoughts and conclusion. Here's my version of his political thoughts-edited for fairness.
It seems probable that the administration did not seek FISA authorization for the surveillance because it thought it unneccessary, even though approval, including ex post facto approval, is apparently pretty easy to obtain.

Doesn't that suggest that the administration underestimated its political enemies, the Democrats and their print arm, the NYT etc.


I think everyone is getting too wrapped up in what the FISA said in 1978 about "wiretapping". Communications have changed drastically since then. NSA grabs signals from the atmosphere for cell phones, satellite phones and wireless internet. I doubt Osama is sitting in his cave using a landline, thus no "wire" to tap.

I don't believe Bush was tapping landline conversations that stayed within US borders. I do believe that NSA picked up some wireless communications that sounded suspicious or threatening to the US. Bravo for Bush if he acted on those threats.


Ms Sunstein:

Did it ever occur to you that the word "appropriate" included an assumption that the actions would be consistent with statutory and constitutional law? Or that wiretapping is not the use of force as authorized?

I'm no bigshot law professor, but my understanding is that laws are generally interpreted as if they are consistent with other statutory law and the provisions of the Constitution. Maybe 9-11 changed that too -- and I just didn't get the memo.

Dan McGuire

Reasonable arguments can certainly be made that the AUMF doesn't qualify as a statute authorizing wiretaps, but Professor Alschuler's statement that "The President's argument that the AUMF authorized scrapping FISA is ludicrous" is patently absurd. Under Hamdi, anything that is so fundamental and accepted an incident to war such that it is an exercise of “necessary and appropriate force” as authorized by Congress is permitted under the AUMF, regardless of whether Congress thought about it or not. Under Germain, if the meaning of the statute is clear on its face other methods to glean Congressional intent are irrelevant. Can you argue that wiretapping isn't within the scope of "necessary and appropriate" actions authorized b the AUMF? Absolutely. Can you argue that the AUMF is not clear, and other sources of Congressional intent and the amendments to FISA mean the AUMF should not be read as permitting wiretapping without warrants? Absolutely. Is suggesting that the AUMF authorized wiretaps without warrants "ludicrous"? Absolutely not.
Somebody needs to learn to distinguish between his personal views on what should be the law and what an objective analysis of the law actually does provide. This is a close call; anyone who doesn't see that is blinded by partisanship.


This is not a close call. 9-11 did not change the rules of statutory construction, did not authorize Congress to rewrite the US Constitution, and did not make Bush an omnipotent potentate. The same reasoning that those who are defending these wiretaps could be used to summarily execute anyone regardless of whether there is any actual evidence -- just say that AUMF authorized the President to do whatever he wants in the name of national security, and that's really all you need. If the President decides that he thinks that Dan Maguire is a threat, under Dan's theories he's as good as dead if that is what the President wants.

Maybe Dan (and Professor Sunstein) want to abrogate the entire system of laws and rights that this nation has lived under for centuries because a handful of religious nutcases armed with pocketknives took over some jets and flew them into a couple of buildings --- but if that is the case, they would probably feel more secure in North Korea, and should move there rather than insist that the rest of us live in a fascist state.

Bruce Moomaw

Yep. The only question about the entire affair is: who the hell decides whether the people being wiretapped actually have any "reasonable connection" to nations, organizations, or persons associated with 9-11? The President, entirely by himself? This President? President Nixon? That, of course, is what the whole damned fuss has been about from the start, and that is the only reason why FISA was created in the forst place.

Bruce Moomaw

Stop press! Absolute dynamite from William Arkin on this very subject:



Stop press! Absolute dynamite from William Arkin on this very subject:

I'm certain that Professor Cass will assure us that this too was authorized by AUMF in Afghanistan.

I mean, can anyone suggest a single law or Constitutional provision that Professor Cass would say was not covered by the AUMF? She certainly hasn't explained to anyone how there are any limits placed on Bush by the Constitution or Statutory Law because according to her, he can do whatever he damn well feels like as long as he claims its in the name of national security.

Well, at least Lewis Libby finally has a defense strategy --- just have Professor Cass testify that in his capacity as a member of Bush's National Security team, he was empowered by AUMF to commit perjury and obstruct our "pre- 9-11" justice system by the AUMF!

Dan McGuire

You're way off base, p likasiak. Neither Professor Sunstein nor I am arguing that the President can do whatever he wants in the name of national security. The AUMF autorized him to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organiza-tions or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Under Hamdi, the President can take any action that "is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use. My argument doesn't lead to the conclusion that the President could have mekilled; it is not an incident to his excercise of necessary and appropoiate force against al Qaeda and the Taliban. Any argument based on the law, rather than emotion, is a close call.
Bruce raises an excellent point. Normally, the President has almost unfettered discretion in how he carrier out a war. While that strikes most people as acceptable when it comes to killing the enemy, it doesn't sit so well when it comes to wiretapping that may involve US citizens, and for good reason (if the wiretapping involved only enemy combatants, it wouldn't raise an eyebrow). I don't have a good answer to this problem. I will say that, reardless of whether the President neede to go to the FISA court, he should have. 72 hours after the fact is plenty of time.

Simon Phelps

A conservative blogger wrote that the "foreign power exception" to FISA might apply to Bush's activities, and highlighted portions of that statute which seemed to say if a U.S. person were acting as a terrorist or an agent of a foreign power, that the president could wiretap him for up to a year without obtaining a warrant.

Can someone please explain to my if and why this exception does or does not apply?

Steve Vinson

Dan McGuire says that the President cannot have US citizens killed, only enemy combatants. But in the Padilla case, the Administration has claimed the right, on its whim, to declare US citizens enemy combatants and to hold them as Prisoners of War, even if they are not taken on the battlefield. Why, then, would the President not be entitled to kill US Citizens that he deemed to be enemy combatants on sight, wherever they are?

Dan McGuire

Drawing lines in the arena of use of force is difficult. I personally think the government is wrong in Padilla. I doubt you'd argue the President cannot put out a shoot to kill order to the troops with respect to Osama bin Laden. If so, then some killing is allowed. What is and what isn't use of appropriate force is not an easy question in all cases. I think the President gets wide lattitude, but not unfettered discretion. The lack of ability for anyone to check on the wiretapps and whether they crossed the line makes this a tough case for the administraton.

Attention P Lukasiak and others: Professor Sunstein is a male.

Simon Phelps

The AUMF argument fails even if we accept the questionable proposition that a wiretap constitutes a use of "force."

To be within the scope of the AUMF, the force must have been both "necessary" and "appropriate."

Here, the president has wiretapped U.S. persons without obtaining warrants, and with no oversight whatever. The argument that wartime exigencies made such warrantless wiretaps without oversight "necessary" fails because the Patriot Act already authorized the president to use wiretaps provided that he obtained warrants within three days *after* placing the wiretaps.

In other words, the president had all the authority he needed to conduct emergency wiretaps without having to fight legal bureaucracy beforehand. Therefore, warrantless wiretaps without oversight were not "necessary" to prosecute the war on terror.

There are exactly two reasons to avoid the warrant requirement where the warrant is required *after* the wiretap. First, if the judicial apparatus to obtain the warrants is itself in league with those being spied upon, then obtaining a warrant even after the fact risks exposing those investigations before they have come to fruition.

Bush has not and will not assert any such corruption of the FISA court here. The proposition is absurd on its face.

The only remaining reason to avoid a warrant requirement where the warrant is not required until after the wiretap is because you don't believe the court will approve the wiretap.

The FISA court, from what evidence we have, has been more than generous in approving FISA warrants. Of several thousand applications, only a handful have ever been disapproved.

The inference is too strong to avoid: Bush was spying on people the FISA court wouldn't have approved of. Bush was spying on American citizens without connections to terrorism.

George W. Bush used the power of the NSA to spy on American citizens for political gain.

Bush must be impeached and removed, or the rule of law in America is over.

Tear up your bar card, because until Bush is no longer president, the concept of "lawyer" is meaningless.

Spying on Americans without obtaining warrants was not "necessary," and therefore not authorized by the AUMF.


Mr. McGuire: regarding your response to p likasiak, I think you miss the point. The problem with giving the president the kind of discretion he wants is that there is absolutely no oversight as to his determinations of what is "necessary and proper." His discretion is unlimited and his acts not even verifiable. That is not our system. There is no check, nor balance. Indeed, much as emotions may urge us to pursue the course the president now proposes, it is taking such a course that the constitution was designed to prevent.

Dan McGuire

P lukasiak doesn't really make that point, although Bruce does. I acknowledge that the lack of judicial oversight is deeply troubling here. That is why I suggested the President should've gone to the FISA court, even if perhaps he wasn't legally required to do so. My problem is that I don't think there should be any judicial or legislative oversight on how the President uses our troops for military offensives in Iraq, so I have a hard time articuating a general rule that works for when you have oversight and when you don't. Relying on the Hague laws and Geneva Convention seems an insufficient answer from those who would say there is oversight in terms of combat. In short, I thikn the president made the wrong call in not goig to the FISA court, and I think he may or may not have needed to do so. It is perfectly reasaonable to be galled by the President's actions and to think they were improper under FISA; it is just plain wrong to assert that the latter is clear cut.


Respectfully, Mr. McGuire, if the president "perhaps . . . wasn't legally required to do so (get a warrant from the FISA court)" and "he may or may not have needed to do so" than it is all for nought. I'm not suggesting the president has the discretion to choose oversight, I'm saying it's a constitutional requirement.

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