Why Bush has no constitutional power for warrantless surveillance

[Filius Nullius]

O.K., now that the Super Bowl is over, it's time to confront reality again. I'm an attorney, and this is a long, lawyerly piece that most DUers won't read, but here goes anyway. Just so you know, I'm not a constitutional lawyer, but, like most attorneys, I studied constitutional law in law school ... and, yes, I did stay at a Holiday Inn Express last night.

The Senate Judiciary Committee will begin hearings today on the right claimed by President Bush to conduct warrantless electronic surveillance. Bush's Republican henchmen have thrown a lot of spurious arguments up against the wall to see if anything will stick. All of them are wrong from the standpoint of constitutional law and statutory construction, but the media doesn't understand what is legal and what is not. All that matters to them is who turns the catchiest phrases and yells the loudest and longest.

Nevertheless, when these hearings are over, if Congress, the media and the rest of the country roll over and allow the warrantless searches and seizures to stand, I fear that one of the most important checks and balances in the U.S. Constitution will have been eliminated. Bush would appear to be on the verge of sending a high-powered public-relations projectile through Article II, Section 2, blasting a hole through the Constitution that obliterates the Fourth and Fifth Amendments and effectively eviscerates the Bill of Rights. Once these civil liberties are gone, it is a virtual certainty that we will never get them back.

To set the stage for this discussion, it is important to realize that the framers of the Constitution did not want a king. They also did not want Congress to be able to make the laws, enforce them and sit as a judicial body because this, too, would place complete power in the hands of a single entity. Consequently, they drafted a document that divided power three ways--between a Congress that would enact the laws, a President that would execute them and a judiciary that would interpret them. It was adopted in 1787 and became the U.S. Constitution. Fearing that the executive branch might attempt to trample civil liberties if they were not expressly stated in the Constitution, they came back a mere four years later and adopted ten amendments that became known as the “Bill of Rights.”

The adoption of the Fourth and Fifth Amendments as part of the Bill of Rights in 1791 essentially revoked any power Congress or the President may have had to conduct or authorize warrantless searches. When the Constitution is viewed in this light, it is impossible to concede to President Bush and his successors the completely unchecked, inherent power to conduct warrantless searches of telephone conversations and email messages that he claims. Please bear with me, I will attempt to explain this position in some detail.

There is a rule of legal construction that is highly germane on the subject of presidential power to conduct warrantless searches and seizures. It says that laws that are “in pari materia,” i.e., that deal with “equal material” or the same subject matter, should be interpreted so as to give effect to all portions of each law. In other words, it requires the U.S. Constitution to be interpreted as an organic whole.

The rule of construction in pari materia applies to all laws of “equal dignity,” i.e., to all laws adopted at the same level of government. It presumes that the citizenry (in the case of constitutional provisions), legislature (in the case of statutes), county or municipal government (in the case of ordinances) or administrative agency (in the case of rules and regulations), as the case may be, is fully aware of every law that it has adopted and that it intends to create a consistent and harmonious system of laws “governed by one spirit and policy.” Each individual law is presumed to have been created intentionally and not by accident and with full knowledge of all other relevant laws. It assumes that the entity adopting a new law, being fully cognizant of all existing laws on the same subject matter, intended for both the new law and the old ones to be effective. Otherwise, it would have written the new law differently or expressly repealed any inconsistent previously-existing laws.

This rule requiring that laws be construed in pari materia is itself part of the law, and judges are required to abide by it when they are interpreting laws that, on first examination, appear to be inconsistent. It requires judges to dig deeper and discover a way to give effect to all laws and to each of their parts. The only exception is where the laws are so inconsistent that they are impossible to reconcile. In such cases, the later law is regarded as the most recent pronouncement of legislative intent on the subject and is considered to have repealed the earlier one by implication.

Turning then to the actual language of the U.S. Constitution, Article VI, Paragraph 2 provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus, the U.S. Constitution is the paramount law of this country, and the rule of in pari materia applies when interpreting it. No state law that is in conflict with it can stand, and no law enacted by Congress, no executive order of the President and no decision of the Supreme Court can supersede it.

Of course, Supreme Court decisions interpreting the Constitution, once adopted, are entitled to great deference as precedents. However, in the end, they are only interpretations, which is why the Supreme Court, when attempting to understand the Constitution and apply it to novel situations or changed circumstances, returns again and again to the actual language of the document, refining or overruling earlier precedents whenever necessary. In that same spirit of faithfulness to the rule of law, whenever any issue of constitutional interpretation arises in public discourse, the first place we must turn for guidance is to the words of the Constitution itself.

With respect to Congress, Article I, Section 1 states: “All legislative Powers herein granted shall be vested in a Congress of the United States….” Note that the framers put the provisions creating and empowering Congress in Article I because they regarded it as the preeminent branch of the federal government. Article I, Section 9 provided Congress with very broad powers over the military, including the power to define and punish offenses against international law, to declare war, to raise and support armies, a navy and the militia and, perhaps most importantly in the present context, the powers “To make Rules for the Government and Regulation of the land and naval Forces” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Note that this last power even goes so far as to permit Congress to enact rules governing how the President performs his job because the framers, with their recent experience of the unbridled powers of the British monarchy, wanted to ensure, more than anything else, that their “chief executive” could not become a de facto king. This power, above all others, makes it clear that the authors of the Constitution intended for congressional power to trump presidential power.

With regard to the President, Article II, Section 1 says: “The executive Power shall be vested in a President of the United States of America.” Article II, Section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States….” Article II, Section 9 issues the following express command to the President: “He shall take Care that the Laws be faithfully executed….”

Turning to the judiciary, Article III, Section 1 provides, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Nevertheless, in Section 2, the judicial power is to be exercised “with such Exceptions, and under such Regulations as the Congress shall make.” Note that Congress, not the President, is given this check and balance over the federal judiciary.

As for the Bill of Rights, the Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fifth Amendment amplifies and expands the Fourth by making it clear that “No person shall… be deprived of life, liberty, or property, without due process of law….”

Although the Fourth and Fifth Amendments were adopted shortly after the rest of the Constitution, they are just as much a part of it as the provisions of Article I and Article II. They must therefore be construed in pari materia with them and be given effect if it is possible to do so.

It is clear from even a cursory reading of Article I, Section 1 that Congress, and not the President, is given exclusive legislative authority. Article II, Section 1 establishes the corollary role of the president as an executive officer who carries out laws enacted by Congress. Thus, at the most basic constitutional level, Congress passes laws, and the President executes them.

However, the Constitution contains another set of complementary provisions involving Congress and the President. Article I, Section 9 gives Congress power “To make Rules for the Government and Regulation of the land and naval Forces.” Under Article II, Section 2, the President is designated as commander in chief of the armed forces of the United States. Congress and the President therefore have concurrent authority over the military and the waging of war. Consequently, where Congress has not addressed a purely military matter, the President has inherent authority to act.

Nevertheless, the President is required to “take Care that the Laws be faithfully executed,” including laws enacted under the power of Congress to make rules governing and regulating the military. Moreover, in his capacity as commander in chief, the President is still a constitutional officer subject to the power of Congress “To make all Laws which shall be necessary and proper for carrying into Execution … all … Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, where Congress has spoken on a subject over which it has authority to enact legislation, including military matters or even the execution of the powers of the presidency, the President is subordinate to Congress and has no option but to “faithfully execute” laws that Congress adopts. This is an extremely inconvenient limitation on presidential power that Chief Executives have frequently tried to circumvent.

It bears repeating that even when the President is engaged in the performance of his duties as commander in chief, Congress can enact rules governing the conduct of his office, and he is duty-bound to obey them. In fact, this is the basis for the Foreign Intelligence Surveillance Act ("FISA") of 1978, which was apparently honored for over two decades by four Presidents prior to Bush 43. Everything in Article II points to the creation of an official with limited powers that are mainly directed at waging conventional wars that have been declared by Congress, conducting foreign policy and executing laws enacted by Congress, all of which are subject to the rules and limitations duly enacted by Congress. Bottom line: When Congress enacts legislation that it has constitutional power to enact, the President must obey. FISA is one of those laws.

It is clear that the constitutional provisions originally adopted in 1787 are in pari materia because they are concerned with a unitary system of checks and balances devised by the framers of the Constitution. They therefore must be read and interpreted as a single, organic whole. Construed together, they make perfect sense as a method of enabling the different branches of our federal government to function together through a harmonious separation of powers.

Turning to the issue of warrantless searches and seizures, these days we generally speak of security issues only in the contest of terrorism. However, the Fourth Amendment specifically recognizes that the people have a right to be “secure in their persons, houses, papers, and effects” against unreasonable governmental intrusions. The test of “reasonableness” is to be decided by an impartial third party, i.e., by a judge or other judicial officer, who issues a warrant authorizing the search or seizure if he or she concurs that it is, in fact, reasonable. Before a warrant can be issued, the officer of the executive branch has to submit a description of the place to be searched and the persons or things to be seized that also explains under oath or affirmation why “probable cause” for the intrusion exists. Without the impartial decision-maker, the executive officer seeking to implement the search or seizure becomes the sole arbitor of whether the search is reasonable. This constitutes absolute power over the decision-making process which, as we all know, has a tendency to currupt absolutely.

Until FISA was enacted in 1978, a warrant had to be issued in advance of conducting a search or seizure. Otherwise, the intrusion was, ipso facto, illegal. There were no retroactive warrants. Therefore, FISA itself constitutes a huge extension of presidential power. However, when it comes to the power of the presidency, there can be no more apt truism than “Give them an inch, and they’ll take a mile.”

To the extent that any provision of the original Constitution is so inconsistent with the Fourth and Fifth Amendments as to be incapable of being reconciled with them, the rules of constitutional construction would come into play, and that provision would be repealed by implication. The Fourth Amendment makes it very clear that, in order for searches or seizures to be legal, warrants are necessary and must comply with certain requirements. When the Fourth Amendment was adopted in 1791, warrants were a purely judicial function. The clear intent was that, if a warrant is required, it must be issued by a judicial officer, and not by a member of the legislative or executive branches. Therefore, to the extent that the President ever did have inherent power to conduct or order warrantless searches or seizures, that power was repealed, expressly or by necessary implication, when the Fourth and Fifth Amendments were adopted, along with the rest of the Bill of Rights, on December 15, 1791.

None of this has stopped Bush from claiming that he has inherent power as President to conduct warrantless electronic surveillance of U.S. citizens or that Congress, by authorizing him to go to war against the Taliban and Saddam Hussein, has implicitly authorized him to conduct warrantless electronic searches and seizures. As many Democratic and Republican members of Congress have pointed out, this is, indeed, a stretch. There is nothing in either of those resolutions that addresses the issue of searches and seizures, not one word.

Moreover, even if Congress had purported to grant Bush the power to conduct such surveillance, it would not be constitutional. The adoption of the Fourth Amendment took away not only any inherent power the President may have had to conduct or authorize warrantless searches, but also any power Congress had to adopt legislation authorizing it.

Call me a tinhat conspiracy theorist, but I fear that if the President's claim goes unchecked or is approved by Congress, we can say goodbye to our civil liberties. Bush and his intelligence agencies will then be in a position to determine for themselves when such intrusions are "reasonable." My guess is that we will soon begin to see the range of situations in which they are deemed appropriate begin to expand, slowly at first and then more rapidly when the executive branch sees that there is no longer anyone guarding the gate. It will ultimately begin to invade the sphere of domestic politics, which will enable Bush and other sitting Presidents to intimidate their political opponents. This will further chill all opposition to the surveillance, which will inspire additional incursions, etc., etc.

Make no mistake about it, this is an attempt to overthrow the government, not by force of arms, but by seductive arguments preying on the public’s fear of terrorism. Hopefully, congressional Democrats and moderate Republicans, the mainstream media, libertarians and the general public will realize that the nation is gripped by one of the most serious constitutional crises in its history and will band together to suppress this putsch.

[Lithos]

1. You could write a book as to why it's illegal

But you touched on some very good points.

Thanks for taking the time to write and post this!

L-

[fooj]

2. This doesn't just violate Federal Law...it violates the US Constitution.

It is a felony...and grounds for impeachment.

Peace.

[Higans]

44. Forget Impeachment, Lets talk about Jail. Hard time Mr. Bush

[pnorman]

3. filius nullius:

"A son of nobody; an illegitimate son. (He has no legal rights as a son in respect to the inheritance of property.)" INDEED???

Thanks for all the thought and insight that went into that posting. I saved it on my HD as a text file, for later and more critical reading.

pnorman

[Filius Nullius]

5. Filius Nullius

In the sense that I feel totally abandoned by the Democratic Party due to its abject failure to recognize the electronic voting fraud that occurred in the elections of 2000, 2002 and 2004.

[pnorman]

6. I know the feeling.

Don't we all here at DU? (And there was NO offence intended. I automatically Google EVERYTHING I don't get. Frequently, I blurt it out without thinking).

pnorman

[xxqqqzme]

42. here, here....

I felt that way on December 13, 2000, when the democratic party did NOTHING after the supremes handed down their partisan decision. I lost all respect for the supremes @ that point. I have always had a great respect for the law but the supremes, w/ that decision, became a bunch of rethug tools that day 'n ever since. I felt abandoned by the party and they haven't given me much hope since then. I'm countin' on Howard 2 rebuild it.

[PDJane]

4. Thank you.........

I will re-read this, because I want to absorb the arguments!

[tulsakatz]

7. thank you!

As I understand it, it is Congress' role to make laws and the President's job is to enact those laws. I had not realized that before but I never believed that Bush has as much power as he claims.

Since you do have legal experience, I was wondering what you think of Bush's signing statements? Like when they created the anti torture policy, when Bush signed it, he added that it was his option to choose whether or not to enact that law.

It seems to me that, if the President's role is to execute the laws created by Congress, the signing statements might also be against the law.

[Filius Nullius]

13. The signing statements are essentially a reservation of rights

As I understand the so-called "signing statements," they are essentially a reservation of rights under which the President signs a law into effect but states his objections to the law and warns that, even though he is going along with it for the time being, he reserves the right to vary from it or even ignore it altogether at a later time if conditions warrant. The Constitution gives the President no such right to conditionally approve a law. He must either sign the law as written or veto it.

[tulsakatz]

39. thank you again!!

I was thinking the same thing. If it is Congresss' authority to create laws, the President does not have the authority to say which laws he will obey and which laws he won't obey!!

Either he agrees with it or not!!

I appreciate your legal opinion on this. Thank you

[Lasher]

72. Signing statements were on my mind while I read through this

Thanks for asking the question about them. This message string confirms my already-strong belief that they have no legal basis whatsoever. I believe signing statements have not so far been put to any judicial test. I sure would like to see that, and soon.

Edit: Fix muh grammer, duhhhh.

[tulsakatz]

83. you're welcome.........

it seems to me that you either agree with the law or you don't! If you agree, you sign it. If you don't, you veto it. It's as simple as that!

It doesn't make any sense to me that you sign a law that you don't agree with. That's not the way the law works. And Bush had any legal experience at all, he would realize that!

[izzybeans]

21. If I had a supreme court appointment to hand out

you'd be a candidate.

Thanks for the post. This is very helpful.

[livvy]

8. Nice post!

You explained the current situation and its relationship to the Constitution in very simple and easy to understand terms.
I agree that this purposeful misinterpretation of the Constitution is a crisis, one that this country has not faced before. I also believe that the majority of the Congress recognizes this, however there are many of them in league to promote this veiled overthrow for their own personal interests. Not everyone "needs" to be the leader, some are content to be high up in the new order along with the privileges their position affords them.
As with any threat that has not been faced before, other members of Congress are like deer caught in the headlights, aware of the imminent danger, but paralyzed to act. There are members who are trying to shake and wake the paralyzed and others slow to react, but its such an unbelievable precedent, unthinkable really. It's difficult to wrap one's brain around it, let alone convince anyone to act.
From speaking to people who don't spend half of their free time keeping track of all the laws this maladministration has broken, I can understand the problem the members who are speaking out face. The majority of the public is blissfully unaware of the real threat they are faced with. Their fear focus is on terrorists abroad, not the ones squatting in the Oval Office.
This maladministration is a powerful one, and does not take its critics with even the slightest sense of humor. They are master architects of threats and using fear as a weapon of mass destruction, in this case our Constitution and the freedoms it affords us.
I think people are beginning to see this maladministration for what it really is. Whether this knowledge will make a difference, remains to be seen. Clearly written explanations, like yours, need to be provided to "the masses". We know the corporate media won't do it, so I guess it's up to us.
Never Give Up!
K&R

[Filius Nullius]

14. Thanks, Livvy, your comments are greatly appreciated

From what I have seen of the committee hearing so far today, the questioning of Gonzalez is going straight down party lines. However, even the Democratic Senators have mainly been throwing deferential, softball questions that seem to assume that the President actually does have inherent authority to order warrantless domestic surveillance of American citizens and that the only questions are whether it is wise for the President to do so and whether the President will voluntarily agree to reign in the exercise of this power. They need to get much tougher.

[BlueEyedSon]

9. They are testing the system to see if they can break it.

They know what they are up to is "technically" illegal (add fabricating intel, starting a war, torture, Plame outing, ignoring FoIA requests, manipulating elections, etc.....). They JUST DON'T CARE. If they can get the other 2 branches to not object and/or not stop them.... they don't have to eliminate checks and balances or the underlying laws to behave as they please.

You and I may feel that the Constitution and the law are supreme above all men (and corporations), that the law is sacred and MUST be followed. This administration (or movement, or stealth political party - clearly a subset of the republicans) have a "who's gonna make me" attitude. And seriously, who is going to make them? If a the executive can control (behind the scenes via influence, etc) the making, interpretation and enforcement of laws, who is going to stop them?

(edited for grammar & spelling)

[livvy]

10. I've had the same thoughts.

And I haven't come up with the answer yet. Who is going to stop them, and how? I know many are trying, both in government and in the general population, but really the bottom line is...how are "we" going to stop them? I know people say, when the Dems take back Congress, but is this really something that will actually occur, given this mal-administration's fondness for stolen elections? And when/if this doesn't occur, what then?
Our nation has never to my knowledge, been faced with a dilemma quite like this.

[Filius Nullius]

15. We are about to see another major breakthrough for the dark forces

It reminds me of a meandering river. It works slowly by erosion, bending back upon itself and wrapping around the opposing forces until it suddenly breaks through and cuts off the opposition.

That is what happened on the abortion issue as some Democratic Senators watched impassively as the banks approached, touched and finally began to cave in at Alito's confirmation vote. They could have prevented the breakthrough by reacting at the cloture vote. The final vote there was 72-25 with 3 not voting. As shown by the final vote on confirmation (58-42), they had the votes to prevent cloture if they had banded together. They were browbeaten by the continual attacks on their characters calling for an "up or down vote" until 18 Democratic Senators (Akaka, Bingaman, Byrd, Cantwell, Carper, Conrad, Dorgan, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, Nelson, Nelson, Pryor, Rockefeller and Salazar) bought it and voted for cloture (Harkin did not vote). Why are some Democratic Senators seemingly unable to recognize that "filibuster" is not an ugly word. It is a tool permitted under the rules of the Senate for the minority to use in preventing confirmation votes on judges who are too ideologically radical for the minority and some of their centrist allies to stomach. It serves to prevent judges from being nominated who are so far out on the fringes of political thought that they are likely to have predetermined how they would vote when important cases come before them. It preserves the rule of law because it promotes a certain comfort level in the minority that enables them to submit to and abide by the outcome of cases because they feel that they were able to get a fair hearing from impartial, mainstream judges, be they Democrats or Republicans.

Now I fear we are about to see another catastrophic collapse if Democratic Senators are not able to summon the will to display real backbone and battle back, ignoring any personal political consequences. If they only put up a perfunctory fight, the repercussions of the impending breach of the Fourth and Fifth Amendments will be on a scale that will dwarf even the inevitable consequences of the Alito debacle.

[MockSwede]

36. Meandering

Man, you get your mind around the subject. Thanks.

If no one can understand this metaphor about the Meander River, they need to google and look at that and other flat-land rivers and streams, particularly with respect to the windings and how the river 'straightens' out by connecting meanders, which cut off the land in the bend.

My only hope is that we can 'backfill' the old river/stream channel so we're not surrounded....

And that the Congress and SC don't just 'go along with the flow'.

http://darkwing.uoregon.edu/~millerm/meander.html

http://geology.wlu.edu/intro3d/meander/meander.html

[NoFederales]

37. With respect to the meandering river, which incidentally helps control

erosion by slowing down river currents during flood situations, the Bush Administration seem to be going at killing the Constitution by "channelization"--just dig a deep straight canal wherever you wish and "fix" those big old winding streams. If the idea of the rule of law by a constitution is like the Mississippi River, then all those feeder streams and tributaries are like the articles and sub-articles. Sever the arteries and bleed to death is Bush mentality.

NoFederales

[Messenger]

60. Where Exactly Are We On the Slippery Slope?

How big and wide-spread is Bush's NSA spying activities?

Well, there is no way of knowing. There is no oversight. No Congressional hearings. When Attorney Gonzalez appeared today, he was pointedly not a sworn witness. He pointedly did not answer specific yes-no questions asked of him. There is, instead, a deliberate iron curtain of lies, prevarications, obfuscations, and delays spread through every GOP fellow-traveler of Bush & Cheney.

Given this illegal secrecy, we are entitled to expect - not only suspect - the worse case scenario: we are well along the way, down the slippery slope to being ruled by men and not by laws.

Some may call it 'authoritarianism'; others call it pre-fascism.

Whatever you call it, this anti-American trend is unmistakable.

[RazzleDazzle]

65. And also, don't forget. He also pointedly wouldn't respond to

"operational" questions. And I noticed him shoving a lot of questions into that category, just to avoid answering them. A reading of the transcript would reveal some very simple and basic questions which he successfully shrugged off.

These people answer to no one.

[Canuckistanian]

11. And they said Clinton caused a constitutional crisis....

Clinton's little episode was nothing compared to this assault on the basis of law.

K&R

[Filius Nullius]

17. That was a sexual pecadillo.

This is driving a bulldozer through the Constitution. The whole framework of personal liberties depends on the Fourth and Fifth Amendment guarantees of freedom from tyranny. The entire house of cards is teetering and will collapse if those two supporting "cards" are effectively removed.

[EVDebs]

12. Congress abandons IT'S constitutional duties via AUMFs illegally

The Offer Congress Can't Refuse

By Onnesha Roychoudhuri, AlterNet. Posted January 24, 2006.


The Justice Department's most recent defense of Bush's illegal wiretap program makes clear that there is no room in the president's plans for Congress.


http://www.alternet.org/story/31219 /

""The DoJ uses its 42-page "defense" of wiretaps to explain exactly what they think Congress intended by the 2001 AUMF. And the gist is this: When Congress passed this piece of legislation, it handed over their say-so in this country's defense.


The AUMF authorization transforms the struggle against al Qaeda from a zone in which the president and the Congress may have concurrent powers into a situation in which the president's authority is at its maximum because it "includes all that he possesses in his own right plus all that Congress can delegate."

The DoJ report has an inherently schizophrenic nature. The first half focuses on the supreme knowledge they seem to have about Congress's intent in passing the AUMF -- namely Congress's alleged pre-emptive support of whatever action the president might take. And yet, it spends the other half declaring war on the very branch it claims granted it such power.""

Both the AUMF and the Iraq War Joint Resolution embed the War Powers Act of 1973. In each case Bush was allowed by resolution '...as he determines...' to define what is truth.

This shockingly simple fact is behind our current national dilemma. How can we manage to get through another three more years ... knowing that the same trick will be pulled on the public again and again and again ? Congress wills it (Deus Volt !, is the battle cry) ???.


AUMF link from Sept 2001
http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq Oct. 2002
http://www.whitehouse.gov/news/releases/2002/10/20021002-2.html

War Powers Act of 1973
http://www.cs.indiana.edu/statecraft/warpow.html

The errant wording Congress allowed to go through is, in each case, "...at (his, Bush's) determination..."

[Filius Nullius]

18. Great post! Thanks for the links.

I can't read them now, but I will try to do so this evening.

[EVDebs]

70. AUMF now stands for Authorization to use military FARCES

Since pretext, just as what required the WPA of 1973 in the first place with the Gulf of Tonkin 'incident' being a complete fakery, and now with 9-11-01 finally being examined slowly but surely, people will wise up to see that what was foisted upon them were PRETEXTS FOR WAR.

Congress needs to preempt the President before he usurps warmaking powers. It looks like he already has with 'war without end', amen.

[Filius Nullius]

16. Wow, Lindsey Graham was tougher than any Democrat has been so far!

I never thought I would hear myself say this, but go, Lindsey, go! He just finished questioning Gonzalez's arguments about inherent power to order warrantless domestic surveillance, discussing the dangers it poses and promosing to come back in the next round of questioning with proposals for reforms.

[samhsarah]

19. Thanks for a great post.

[657 Crew]

20. Here's some additional thoughts...

From The New Republic:

http://www.tnr.com/doc.mhtml?i=w060130&s=heymannposner013106

[Filius Nullius]

45. I agree with this link

All of the arguments in favor of warrantless domestic surveillance start with the Argumentum in Terrorum (the standard Al Quaida scare tactics, i.e., "If we don't trash all individual liberties, the terrorists will get you"), proceed to "The end justifies the means" Defense (which is, as we all know, a complete non sequitur because no matter how clearly the people recognize the need for protection, it cannot possibly justify total suppression of all personal freedom) and, when all else fails, end with the Chewbacca Defense (deliberate obfuscation, making no sense whatsoever, in the hope that their opponents will become so competely worn out from vainly trying to discern their meaning that they will become hopelessly bewildered and simply wander away).

[Filius Nullius]

47. Self-Delete (duplicate)

[brainshrub]

22. And just in case anyone says that "Clinton did it first":

And just in case anyone says that "Clinton did it first":

Aldrich Ames spy case is not an example of illegal warrantless wiretaps or searches by the Clinton Administration.

[VP505]

25. Just in case,

hell Hatch couldn't get "Clinton did it" out fast enough!

[BadgerKid]

48. We are bad "parents"

The Rs always claiming "Clinton did it" is like a child saying that so-and-so's mom let *him* do it, so you should therefore allow the same.

I am hopeful for the day of critical mass when the phrases "Well, it doesn't matter whether Clinton did it or not because right now we are talking about YOU " and "Because *I* said so" stick.

[PvtJoker]

85. That's usually a sign of a weak argument...

..."the other guy did it". If that's what they're routinely falling back on--and it seems it is--then they're in trouble.

Or maybe they're not. The general population is so scandal weary, it seems the current administration's strategy is to throw so much spaghetti at the wall that we won't pay attention to what sticks.

[MarinCoUSA]

23. thanks for this great post

n/t

[jrw14125]

24. I'm a lawyer and I approve this message!

[tandem5]

26. Bush has no constitutional power for warrantless surveillance because...

he doesn't. Period. We are thoughtful people, but we have to start believing what we already know and just say "no, this is wrong - stop it now!" I know we are all desperate to get through to an apathetic America, but if we keep on engaging the absurd we just help the spin move us from "shock and outrage" to "national discussion about opposing viewpoints."

[understandinglife]

27. Bookmarked, Recommended and Thank You! And, ...

Make no mistake about it, this is an attempt to overthrow the government, not by force of arms, but by seductive arguments preying on the public’s fear of terrorism. Hopefully, congressional Democrats and moderate Republicans, the mainstream media, libertarians and the general public will realize that the nation is gripped by one of the most serious constitutional crises in its history and will band together to suppress this putsch.

Precisely.


Peace.

[splat@14]

28. Great post! So, when do we get to waterboard Gonzales?

[TomClash]

29. I don't even think you get there

Under the doctrine of constitutional avoidance, you look at the statute first and then look at the Constitution. The President at the time signed FISA into law - Bush can't now argue that it only applies when he chooses it to apply unless he contends FISA is unconstitutional, which he has never argued. It is specious to argue that the Executive has "inherent powers" in direct contravention of a statute specifically addressing how he can conduct surveillance of Americans without going to the Congress to change the law or commencing a case so the judiciary can interepret the constitutionality of the law.

There is a word for this type of behavior. Expediency? Perhaps. Practical? Doubtful. No, the appropriate word is . . . fascism.

[ItsTheMediaStupid]

31. I thought the word was crime

Facism and crime. Sounds like Bush.

Our RW neighbors ignore that we are doing the exact same things that the Regean's "Evil Empire" did, using secret domestic spying and the unwarranted military adventures.

Hitler and Mussolini did these things too, in capitalist societies.

[yy4me]

30. Thank you for the time and exceptional effort. You have

made the issue clearer for me. As a layman, I have had trouble connecting some points of law to others, this post has cleared up much of what I have been trying to understand. We know warrantless wiretaps are wrong, now we can see the basis for the argument against them. The progression of constitutional points is much clearer to me. Please keep us informed as you assess unfolding events in relation to your understanding of the Constitution. Wish you were a member of Congress...or then again, maybe you can better serve by being on the outside.

[LaloBorges]

32. Excellent - please get this article to the media

It is a good opportunity to educate (at least try to) the parrots from the media; Chris Mathews, just don't waste time with O'Reilly.

[ewagner]

33. Great Post....

Send it to the Dems on the committee so they can counter some of the legal mumbo-jumbo that Gonzo is putting out

[Filius Nullius]

49. Don't know how to reach any of them

In my experience, the sheer volume and noise factor involved in most methods of communicating (particularly email) with the media and legislators are so high that almost nothing gets noticed. Except for their close, personal contact with lobbyists, I believe that most legislators operate in a virtual vaccuum.

[Rockholm]

34. Thank You and Welcome to DU.

[Straight Shooter]

35. Excellent. Thank you.

I feel like we are in the days of Columbus, as he patiently and logically tried to explain that the world is not flat. And, yet, looking at the same evidence as Columbus presented, the attitude of ignorance prevailed for a long, long time. People could not be shaken from their stupor as they stubbornly insisted, "The world is flat!"

Bill of Rights gone? Constitution bulldozed? Pshaw, "It can't happen here." The naivete of people never ceases to amaze me, their willingness to abdicate their responsibilities as citizens of this nation. Yet they turn around and mutter to each other, "All politicians are corrupt, they're all the same."

We are not just fighting idolatry of bush. We are fighting ignorance. Blind, lazy, apathetic ignorance.

[Filius Nullius]

38. Go, Arlen!

The hearings just finished up for the day a short while ago. Chairman Arlen Specter made it very plain at the end of the day's proceedings that there will be many more questions and that he is not at all satisfied with Gonzalez's answers. It appears that the hearing will not be wrapping up anytime soon. His last words were, "Thank you Mr. Attorney General. You have made your case with great fortitude and stamina, even if we do not agree with parts of it," or words to that effect. Except for Lindsey Graham, all of the other Republicans asked nothing but leading questions that suggested convenient answers for the AG.

Despite being pleased with Senator Specter's pointed questions at the end of the day, I was quite dismayed that Gonzalez was allowed to testify without being sworn to tell the truth. He continually bobbed and weaved all day and repeatedly refused to answer questions about "operational details" of the President's so-called "anti-terrorism surveillance program." It is shameful that the U.S. Attorney General, supposedly the top lawyer in the country and an official who is sworn to uphold the Constitution and laws of the United States, would not willingly take an oath to testify truthfully. I can only conclude that the reason he would not do so is that there is much in his testimony that constitutes evasion, half truths or outright falsehood.

The Democrats came on much stronger during the afternoon session than at the start of the hearing this morning. The replay on C-SPAN starts at 8 p.m.

[nolies32fouettes]

46. how do they justify unsworn testimony?

What is the point of unsworn testimony without the threat of a perjury charge? We can't trust these people to be honest even WITH that threat!

[MuseRider]

40. K and R and THANK YOU!

This is excellent. I am bookmarking for reference.

[shadowlight]

41. I read it!

Thanks for the education.

[madmark]

43. Under what circumstances can the Executive abrogate the 4th Amend?

Bushco seems to be arguing that the 4th Amendment can be disregarded in times of war or when an issue of national security is raised pursuant to its Article II inherent powers which I would think most people would find unacceptable particularly when the war is an undeclared open ended conflict whose scope and length is contracted and expanded at the leisure and whim of the executive. The Courts have ruled that the 4th amendment can be disregarded in the presence of an exigency. I have not heard Bushco make this argument explicitly as they have been focusing on inherent Art II powers. It actually is a better one. Quite frankly we want the executive listening in on Al Quada calls coming in and out of the US and we have a legal mechanism to do that now with FISA (which I think has its own constitutional issues given the secretiveness of the Court but hell its better than nothing and at least giving a nod to the 4th amendment). So what's the problem? Is it that the FISA warrant requests have the tortured confessions as their basis and the Court called them on it? I don't know the answer to the question but the debate should not advance one inch further until the Executive articulates compellingly why the FISA mechanism is insufficient. Otherwise its just a naked unconstitutional executive power grab, and unlike intern blowjobs, it matters. Its a deal breaker, and the Congress and the Courts have to put the Executive in check or we become a totalitarian state and I do not believe I am hyping or overstating the issue.

[Filius Nullius]

51. Argumentum ad exigentiam

Maybe I would go along with the exigency argument in the event of a true emergency. However, the courts should have to confirm that it really is an emergency before sanctioning a departure from due process where personal liberties are concerned. Procrastination for the purpose of creating an artificial emergency is the danger. Any person or governmental agency creating a trumped up "need for speed" as justification for an end around on the law should have the book thrown at them (please excuse the trite mixed metaphors).

[creeksneakers2]

50. What about the power of Congress under Art 1 Clause 8?

Congress was authorized:

"To make Rules for the Government and Regulation of the land and naval Forces"

I'm not a lawyer, but I know the righties like to insist that they only read the constitution by the plain meaning of its text. That's how I'm reading this. If Congress can make the rules for regulation of the land and naval forces, then it would appear that any power Bush has as Commander in Chief is a power that is shared with Congress.

The righties are making a point of convincing people that the president has EXCLUSIVE powers over the military. I read Article 1 section 8 and there is a whole list of powers Congress has over the military. I haven't heard anybody talk about what power Congress has.

I believe since the NSA is under the Pentagon and led by a military officer that if falls under the category of land forces that can be regulated.

If Bush does not have exclusive constitutional authority, doesn't the question then come down to which branch should prevail?

ADDED: This is what Bush had to say on this subject when asked:


"I would say that there has been a historical debate between the executive branch and the legislative branch as to who's got what power. And I don't view it as a contest with the legislative branch. Maybe they view it as a contest with the executive; I just don't. I view it – I view the decisions I've made, particularly when it comes to national security, as necessary decisions to protect the American people. That's how – that's the lens on which I analyze things. … I'm going to leave that to the lawyers. I believe I've been hired by the people to do my job, and that's to protect the people, and that's what I'm going to do…."

[nosferaustin]

77. That is NOT what he was "hired" to do...

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

Someone, somewhere, who has face to face contact with this Id*ot (ie. someone in the media, Congress, etc) needs to point this out to him, over and over and over again. Beat it into his pea sized pathetic excuse for a brain that he is not America's action hero wanna-be and this is not some B-rate Hollywood action flick, this is the real world, he is supposed to be the president of the United States of America and he is supposed to follow the fucking law like all of the rest of us.

I get physically ill thinking about all of this. Sick to think that my generation is standing by watching the decline of the boldest experiment in self governance in the history of the world (Actually, I know most are actually watching Dancing with the "what's his/her names" and have no damn clue what's going on...)

I'm from Texas and feel somewhat responsible for this f'ing mess and I live in Utah now, which is even worse (I never thought I'd say that a legislature is worse than the Texas leg., but folks, their trying to repeal the 17th amendment here in Mormanland and it looks like they might actually pull it off, it's unbelievable...) but I will not, can not stand by and watch this no matter how hopelessly lost I feel.

gods help us, one and all (if you believe in that sort of thing...)

[Briarius]

52. This is great!

thanks for putting in the work on this, I feel like I really know why this is illegal now. In better terms anyway, than just that he's violating the 4th. Thanks again!

[freedomfries]

53. thanks Filius Nullius

for laying this out so clearly!

[rasjax]

54. Your take on another Legal Analysis of the NSA wiretapping??

Legal Analysis of the NSA Domestic Surveillance Program:
by Orin Kerr, Professor at George Washington University Law School

Was the secret NSA surveillance program legal? Was it constitutional? Did it
violate federal statutory law? It turns out these are hard questions, but I
wanted to try my best to answer them. My answer is pretty tentative, but
here it goes: Although it hinges somewhat on technical details we don't
know, it seems that the program was probably constitutional but probably
violated the federal law known as the Foreign Intelligence Surveillance Act.
My answer is extra-cautious for two reasons. First, there is some wiggle
room in FISA, depending on technical details we don't know of how the
surveillance was done. Second, there is at least a colorable argument — if,
I think in the end, an unpersuasive one — that the surveillance was
authorized by the Authorization to Use Miltary Force as construed in the
Hamdi opinion.

This is a really long post, so let me tell you where I'm going. I'm going to
start with the Fourth Amendment; then turn to FISA; next look to the
Authorization to Use Military Force; and conclude by looking at claim that
the surveillance was justified by the inherent authority of Article II. And
before I start, let me be clear that nothing in this post is intended to
express or reflect a normative take of whether the surveillance program is a
good idea or a bad idea. In other words, I'm just trying to answer what the
law is, not say what the law should be.

The Fourth Amendment. On the whole, I think there are some pretty decent
arguments that this program did not violate the Fourth Amendment under
existing precedent. There are a bunch of different arguments here, but let
me focus on two: the border search exception and a national security
exception. Neither is a slam dunk, by any means, but each are plausible
arguments left open by the cases.

The border search exception permits searches at the border of the United
States "or its functional equivalent." United States v. Montoya De
Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States
as a sovereign has a right to inspect stuff entering or exiting the country
as a way of protecting its sovereign interests, and that the Fourth
Amendment permits such searches. Courts have applied the border search
exception in cases of PCs and computer hard drives; if you bring a computer
into or out of the United States, the government can search your computer
for contraband or other prohibited items at the airport or wherever you are
entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d
501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program
involved international calls (and international e-mails). That is, the NSA
was intercepting communications in the U.S., but only communications going
outside the U.S. or coming from abroad. I'm not aware of any cases applying
the border search exception to raw data, as compared to the search of a
physical device that stores data, so this is untested ground. At the same
time, I don't know of a rationale in the caselaw for treating data
differently than physical storage devices. The case law on the border search
exception is phrased in pretty broad language, so it seems at least
plausible that a border search exception could apply to monitoring at an ISP
or telephone provider as the "functional equivalent of the border," much
like airports are the functional equivalent of the border in the case of
international airline travel. or left comments expressing skepticism about this argument. In response, let
me point out the most persuasive case on point: United States v. Ramsey,
holding that the border search exception applies to all international postal
mail, permitting all international postal mail to be searched. Again, this
isn't a slam dunk, but I think a plausible argument -- and with dicta that
seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept
the border search exception: the open question of whether there is a
national security exception to the Fourth Amendment that permits the
government to conduct searches and surveillance for foreign intelligence
surveillance. Footnote 23 of Katz v. United States left this open, and
Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by
successive Presidents. The present Administration would apparently save
national security cases from restrictions against wiretapping. We should not
require the warrant procedure and the magistrate's judgment if the President
of the United States or his chief legal officer, the Attorney General, has
considered the requirements of national security and authorized electronic
surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith"
case, United States v. United States District Court, in 1972. Justice
Powell's opinion in the Keith case concluded that there was no national
security exception to the Fourth Amendment for evidence collection involving
domestic organizations, but expressly held open the possibility that such an
exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the
President's surveillance power with respect to the activities of foreign
powers, within or without this country. The Attorney General's affidavit in
this case states that the surveillances were "deemed necessary to protect
the nation from attempts of domestic organizations to attack and subvert the
existing structure of Government." There is no evidence of any involvement,
directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does
have such power in cases involving foreign evidence collection, and that the
NSA surveillance is such a case. The Supreme Court has never resolved the
question, so it's an open constitutional issue. Nonetheless, between the
border search exception and the open possibility of a national security
exception, there are pretty decent arguments that the monitoring did not
violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly
open and fair arguments under the case law.

Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law
that Congress enacted in response to the Keith case. FISA goes beyond the
Keith case, including foreign intelligence surveillance in its scope even
though it was left open as a constututional question.

Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as
authorized by statutory law: "A person is guilty of an offense if he
intentionally . . . engages in electronic surveillance under color of law
except as authorized by statute." "Electronic surveillance" is defined in 50
U.S.C. 1801(f) to mean, in relevant part:
(1) the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire or radio communication sent by or
intended to be received by a particular, known United States person who is
in the United States, if the contents are acquired by intentionally
targeting that United States person, under circumstances in which a person
has a reasonable expectation of privacy and a warrant would be required for
law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire communication to or from a person in the
United States, without the consent of any party thereto, if such acquisition
occurs in the United States. . . .
A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of
the United States an alien lawfully admitted for permanent residence."
A "wire communication" is defined as a communication that is traveling by a
wire; I don't know if "radio communication" is a defined term, but I assume
it refers primary to satellite communications.

Putting aside the AUMF and statutory exceptions for now, let's consider
whether the NSA surveillance program violates the basic prohibition of 50
U.S.C. 1809 — intentionally conducting electronic surveillance. I think the
answer is probably yes. If the surveillance tapped wire communications under
1801(f)(2), the case is pretty clear: the surveillance involved people in
the U.S. and survillance in the U.S., and that's all that is required. If
the surveillance involved radio communications (satellite communications,
I'm guessing), that's a bit trickier. There is at least a little wiggle room
in Section 1801(f)(1). For example, you could say that the border search
exception eliminates Fourth Amendment protection, such that there was no
reasonable expectation of privacy and therefore there would be no warrant
required in an analogous criminal case. In that case, the tapping of the
radio communication wouldn't count as "electronic surveillance." I don't
think we know the details of how the communucations were obtained, so I
think it's fair to say that the surveillance probably violated the basic
proibition but it at least arguably depends on some of the technical details
we don't know.

Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:
Notwithstanding any other law, the President, through the Attorney General,
may authorize electronic surveillance without a court order under this
subchapter to acquire foreign intelligence information for periods of up to
one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means
of communications used exclusively between or among foreign powers, as
defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken
communications of individuals, from property or premises under the open and
exclusive control of a foreign power, as defined in section 1801(a)(1), (2),
or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire
the contents of any communication to which a United States person is a
party.
Does this exception permit the monitoring? Note that (i) and (ii) are both
dealing with "foreign power, as defined in (a)(1), (2), or (3) of this
title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:
(1) a foreign government or any component thereof, whether or not recognized
by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of
United States persons;
(3) an entity that is openly acknowledged by a foreign government or
governments to be directed and controlled by such foreign government or
governments;
(4) a group engaged in international terrorism or activities in preparation
therefor;
(5) a foreign-based political organization, not substantially composed of
United States persons; or
(6) an entity that is directed and controlled by a foreign government or
governments.
So as I read the statutes, Congress was trying to give an exception for
monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4,
a5, a6), so long as no citizens or lawful permanent resident aliens were
being monitored. There are interesting questions of how that might have
applied to Al Qaeda in Afghanistan, but I don't think we need to reach them.
It's my understanding that the program monitored both citizens and
non-citizens, so I don't see how the exception is applicable.

(Aside: Remember back in 2003 when a copy of the Administration's "Domestic
Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to
the press? Section 501 of that Act would have made "providing material
support" to a terrorist group an automatic ground for terminating
citizenship. This is just a guess, but I wonder if the thinking was that
this would make the NSA warrantless monitoring program legal under FISA. An
individual who made regular contact with Al Qaeda could be giving them
material support, and the individual would then no longer be a United States
person and could then be legally subject to monitoring. Just speculation,
but it might explain the thinking behind the legislative proposal. Anyway,
back to our regularly scheduled programming.)

Authorization to Use Military Force. The next question is whether the
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224,
justified the monitoring. The authorizaton states in relevant part:
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.
I assume that the Administration's claim is that the AUMF counts as a
"statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A
person is guilty of an offense if he intentionally . . . engages in
electronic surveillance under color of law except as authorized by statute,"
so if the AUMF authorized the electronic surveillance, then the NSA program
didn't violate FISA.

The Supreme Court considered the legal effect of the AUMF in Hamdi v.
Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that
his detention violated 18 U.S.C. 4001. Section 4001(a) states that "o
citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress." Given Justice Thomas's very broad
reading of the AUMF in his dissent, I think the key interpretation is that
of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist,
Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the
AUMF was "an act of Congress" that authorized Hamdi's detention, such that
the detention did not violate 4001(a):

The AUMF authorizes the President to use "all necessary and appropriate
force" against "nations, organizations, or persons" associated with the
September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt
that individuals who fought against the United States in Afghanistan as part
of the Taliban, an organization known to have supported the al Qaeda
terrorist network responsible for those attacks, are individuals Congress
sought to target in passing the AUMF. We conclude that detention of
individuals falling into the limited category we are considering, for the
duration of the particular conflict in which they were captured, 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.

The capture and detention of lawful combatants and the capture, detention,
and trial of unlawful combatants, by "universal agreement and practice," are
"important incident's of war." Ex parte Quirin, 317 U. S., at 28. The
purpose of detention is to prevent captured individuals from returning to
the field of battle and taking up arms once again. . . .

In light of these principles, 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.

Hamdi contends that the AUMF does not authorize indefinite or perpetual
detention. Certainly, we agree that indefinite detention for the purpose of
interrogation is not authorized. Further, we understand Congress' grant of
authority for the use of "necessary and appropriate force" to include the
authority to detain for the duration of the relevant conflict, and our
understanding is based on longstanding law-of-war principles.
. . .
The United States may detain, for the duration of these hostilities,
individuals legitimately determined to be Taliban combatants who "engaged in
an armed conflict against the United States." If the record establishes that
United States troops are still involved in active combat in Afghanistan,
those detentions are part of the exercise of "necessary and appropriate
force," and therefore are authorized by the AUMF.
So does the AUMF authorize the surveillance? As often happens when you're
trying to draw guidance from an O'Connor opinion, it's not entirely clear.
Under her opinion, the key question is whether the act is "so fundamental
and accepted an incident to war" that it falls within the authorization. But
that depends on the level of generality you chose to use to define "the
act." Is "the act" spying on the enemy? In that case, perhaps it is a
fundamental incident to war. Or is "the act" conducting U.S. domestic
surveillance of U.S. citizens? In that case, the answer is no, it's not a
fundamental incident to war.

In the end, my best sense is that the AUMF doesn't extend to this. I have
three reasons. First, O'Connor's opinion says the following about detention
for interrogation: "Certainly, we agree that indefinite detention for the
purpose of interrogation is not authorized." It seems to me that
surveillance and wiretapping is pretty similar to interrogation: the point
of both is getting information about your enemy. Second, it doesn't seem
like wiretapping counts as a "use of force." If you read the text of the
AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note
that Congress passed the Patriot Act about a month after passing the AUMF;
if Congress had intended the AUMF to give the president wide authority to
conduct domestic surveillance against Al Qaeda, I don't think they would
have spent so much time amending FISA for terrorism investigations. So at
bottom, I think the AUMF probably didn't authorize this, although the Hamdi
case gives some colorable (if ultimately unpersuasive) arguments that it
might.

Article II. The final argument is that Article II of the Constitution gives
the President inherent authority to conduct such monitoring. The
Administration introduced this theory in a supplemental brief filed in the
FISA Court of Review:
The President Has Inherent Authoritv to Conduct Warrantless Electronic
Surveillance to Protect National Security from Foreign Threats.

In considering the constitutionality of the amended FISA, it is important to
understand that FISA is not required by the Constitution. Rather, the
Constitution vests in the President inherent authority to conduct
warrantless intelligence surveillance (electronic or otherwise) of foreign
powers or their agents, and Congress cannot by statute extinguish that
constitutional authority. Both before and after the enactment of FISA,
courts have recognized the President's inherent authority to conduct foreign
intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding
exception to warrant requirement in the President's Commander-in-chief and
foreign-affairs powers; noting that the country's self-defense needs weigh
on the side of reasonableness); Truong, 629 F.2d at 914 (citing the
President's foreign affairs power as justifying an exception to the warrant
requirement); cf. United States v. United States District Court (Keith), 407
U.S. 297, 308 (1972)(reserving the question whether the President's
foreign-affairs powers justify exception from warrant requirement).
So the argument, as I understand it, is that Congress has no power to
legislate in a way that inteferes with the President's Commander-in-Chief
power, a judgment made, I suppose, by the President himself.

I have been unable to find any caselaw in support of this argument. Further,
the argument has no support from the cases cited in the government's brief.
In all three of those cases — Butenko, Truong, and Keith - the Courts were
talking about whether the President's interest in conducting foreign
intelligence monitoring creates an exception to the Warrant Requirement of
the Fourth Amendment. In other words, the issue in those case was whether
the Constitution bars warrantless surveillance absent Congressional action,
not whether Congressional prohibitons in this area cannot bind the Executive
branch.

Consider the citation to the Butenko case. Here is the relevant section,
from 494 F.2d at 608:
Both executive authority in the foreign affairs area and society's interest
in privacy are of significance, and are equally worthy of judicial concern.
. . .
The importance of the President's responsibilities in the foreign affairs
field requires the judicial branch to act with the utmost care when asked to
place limitations on the President's powers in that area. As
Commander-in-Chief, the President must guard the country from foreign
aggression, sabotage, and espionage. Obligated to conduct this nation's
foreign affairs, he must be aware of the posture of foreign nations toward
the United States, the intelligence activities of foreign countries aimed at
uncovering American secrets, and the policy positions of foreign states on a
broad range of international issues.

To be sure, in the course of such wiretapping conversations of alien
officials and agents, and perhaps of American citizens, will be overheard
and to that extent, their privacy infringed. But the Fourth Amendment
proscribes only 'unreasonable' searches and seizures. And balanced against
this country's self-defense needs, we cannot say that the district court
erred in concluding that the electronic surveillance here did not trench
upon Ivanov's Fourth Amendment rights.

As I read this analysis, it is entirely focused on the Fourth Amendment, and
specifically whether the President's Commander in Chief power should trigger
a relaxed Fourth Amendment standard. That seems quite different from a claim
that Article II makes Congressional regulation inoperative. The same goes
for the citation to Truong, 629 F.2d at 914. In the course of discussing
whether the Courts should require a warant for foreig intelligence
surveillance, the court tried to balance the ability of courts to regulate
intelligence surveillance with the strong governmentg interest:
Perhaps most crucially, the executive branch not only has superior expertise
in the area of foreign intelligence, it is also constitutionally designated
as the pre-eminent authority in foreign affairs. The President and his
deputies are charged by the constitution with the conduct of the foreign
policy of the United States in times of war and peace. Just as the
separation of powers in Keith forced the executive to recognize a judicial
role when the President conducts domestic security surveillance, so the
separation of powers requires us to acknowledge the principal responsibility
of the President for foreign affairs and concomitantly for foreign
intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its
practical experience, and its constitutional competence, the courts should
not require the executive to secure a warrant each time it conducts foreign
intelligence surveillance.

While the Court was recognizing the President's constitutional role, it was
in a very specific context: balancing reasonableness in the context of
Fourth Amendment law to determine whether the surveillance required a
warrant. Again, this doesn't seem to go to whether Congress can impose
binding statutory prohibitions beyond the Fourth Amendment.

UPDATE: additional thoughts:

Of course you’re right that Keith and Katz reserved the question whether the
President may engage in warrantless surveillance of foreign-based threats to
the national security. While the Supreme Court has never addressed the
issue, a number of federal appellate courts, some of which you cite at the
end of your post, answered that question in the affirmative in the years
immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418
(5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en
banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v.
Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d
594 (D.C. Cir. 1975).

The interesting question is whether FISA somehow extinguishes this inherent
Presidential power to conduct foreign-intelligence surveillance. There’s a
respectable argument that it does. FISA repealed Title III’s reservation
clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent
to regulate the collection of foreign intelligence. Given that repeal, we
might be in Category Three from Justice Jackson’s Steel Seizure concurrence
— "When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for then he can
rely only upon his own constitutional powers minus any constitutional powers
of Congress over the matter. Courts can sustain exclusive Presidential
control in such a case only by disabling the Congress from acting upon the
subject."

Source: http://volokh.com/posts/1135029722.shtml

[rasjax]

55. Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II

Marty Lederman

I'm honored to be part of a diverse group of 14 constitutional scholars and former government officials who have joined together to question the legality of the NSA domestic eavesdropping program. I've previously posted about our original letter to Congress, which can be found here. The Department of Justice thereafter made public an unsigned "White Paper" attempting to provide a legal justification for the NSA program and addressing several of the arguments we had made.

Today, we sent to Congress this letter in which we respond to the DOJ White Paper. Here's the Summary:

The administration has continued to refuse to disclose the details of the program, and therefore this letter, like our initial letter, is confined to responding to the DOJ’s arguments. The DOJ Memo, while much more detailed than its initial letter, continues to advance the same flawed arguments, and only confirms that the NSA program lacks any plausible legal justification.

In our initial letter, we concluded that the Authorization to Use Military Force against al Qaeda (AUMF) could not reasonably be understood to authorize unlimited warrantless electronic surveillance of persons within the United States, because Congress had clearly denied precisely such authority in the Foreign Intelligence Surveillance Act (FISA), and had specifically addressed the question of electronic surveillance during wartime. We also found unpersuasive the DOJ’s contentions that the AUMF and FISA should be construed to authorize such surveillance in order to avoid constitutional concerns. FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply. And even if it did apply, the constitutional avoidance doctrine would confirm FISA’s plain meaning, because the Fourth Amendment concerns raised by permitting warrantless domestic wiretapping are far more serious than any purported concerns raised by subjecting domestic wiretapping to the reasonable regulations established by FISA. The Supreme Court has never upheld warrantless domestic wiretapping, and has never held that a President acting as Commander in Chief can violate a criminal statute limiting his conduct.

As explained below, these conclusions are only confirmed by the more extended explication provided in the DOJ Memo. To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Source: http://balkin.blogspot.com/

[Filius Nullius]

71. Scholars' Reply to DOJ "White Paper"

Thank you so much for providing this information. I am sure that the service which you and the other members of this group of constitutional scholars and former government officials have performed in shedding light on these murky issues is greatly appreciated by all DUers. Incidentally, I understand that a link to your original letter to Congress has previously been posted on the DU, but I wonder if you could post a link to it in this thread for our ease of reference.

[wakemeupwhenitsover]

61. rasjax,

please be aware that DU copyright rules require that excerpts of copyrighted material be limited to four paragraphs and must include a link to the original source.

best,
wakemeupwhenitsover
DU Moderator

[rasjax]

63. opps

Sorry about the length.. must of missed that rule about 4 paragraphs, but then again that wasnt any longer than the original post. As for the citing sources... fixed.

[creeksneakers2]

62. Do you have a link or a full citation for the Hamdi case?

I've tried to find it and all I can find on Findlaw is the grant of certiorari and a settlement agreement between the government and Hamdi on September 17, 2004. It doesn't look to me like the Supreme Court ever heard the case.

Some of your quotes appear to be from the circuit court, and skimming the case I can't find anything remotely relevant to wiretapping, as Hamdi was determined to be a battlefield combatant caught under war authority granted by Congress.

I'm very interested because I saw Orrin Hatch make the same kind of claims during the hearings, and wonder if this is all a case of more propaganda from the right wing on this subject. There has been a great deal already.

[rasjax]

64. Links

The only link I could find was from Orin's original post.. which is:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696

[creeksneakers2]

66. Yeah. That's the 4th Circuit case

The author not only failed to cite a case, something I've never seen a lawyer do in legal writing, he also added embellishments about Sandra O'Connor and other Supreme Court justices giving their opinions on the case. Maybe I'm wrong and missing something. For now, I wouldn't put much weight on this individual's opinions.

[rasjax]

67. embellishments

You care to share what you felt is an embellishment?? and where he didn't cite a case? Just curious.. maybe I missed something to.

[creeksneakers2]

80. My bad

Thanks for the link.

[rasjax]

56. Senator Roberts Declares FISA Unconstitutional

Marty Lederman

Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. (For a contrary view, sent to the Congress yesterday by 14 constitutional law professors and former government lawyers, see here.)

Notably, Senator Roberts does not really indulge DOJ's untenable argument that Congress gave the President the authority to override FISA -- and that Congress impliedly repealed the "exclusive means" provision of FISA -- when it enacted the force authorization related to Al Qaeda on September 18, 2001. To be sure, in the Conclusion to his letter, Senator Roberts mentions en passant that he "do not discount" the AUMF argument -- but he doesn't try to defend it in the slightest. Indeed, he does not even suggest that when he himself voted for the AUMF, he intended -- or had any inkling -- that FISA was being overriden and in part repealed. His argument, instead, is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.



It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)

One other important thing about the Roberts letter: He reveals what many of us had suspected -- namely, that one reason the Administration is circumventing FISA is because it is engaged in interceptions that the FISA Court could not approve under the law as currently drafted: "FISA’s burden of proof -– probable cause that individual is an agent of a foreign power -– is higher than the 'reasonableness' the Fourth Amendment requires and does not enable surveillance of all the assistants and collaborators of our enemies that the President should target for intelligence collection."

Now, it should be understood what Roberts is saying here: FISA does not regulate at all the surveillance of "all the assistants and collaborators of our enemies" insofar as the interceptions occur overseas -- even if the communications are with persons in the U.S., NSA may freely intercept those calls (or that's my understanding, anyway). And even if the interception is made here in the U.S., FISA allows for a judicial order upon a showing of probable cause that the person in the United States whose phone or computer is targeted is "an assistant or collaborator of our enemies." Therefore, what's at issue here is (i) the targeting of U.S. persons who are not suspected of being Al Qaeda assistants or collaborators, but who are calling persons overseas who are suspected of being such; and/or (ii) the targeting of U.S. persons who the NSA suspects of being "assistants or collaborators," but where there is not probable cause to believe it.

(By the way, Roberts confirms that "assistant or collarborator" is defined very broadly, to include not only members of Al Qaeda or those who assist in Al Qaeda's terrorist operations, but also persons "affiliated with" Al Qaeda and persons who are members of "organizations affiliated with Al Qaeda." Thus, some of the intercepted calls might not involve any party who is in league with Al Qaeda or who is otherwise even suspected of having had anything to do with the attacks of September 11, 2001.)

[john bourne harbour]

57. excellent article

and so if we take the assumption that things will continue downhill as they are, the only question is, . . will the revolution be televised?

[Filius Nullius]

68. Ha!

You are too droll, my friend.

[bigbrother05]

73. The revolution may not be televised,

but it is damn sure being web cast!

edited: to accurately reflect tagline

[WestMichRad]

58. Thanks for starting this thread, Filius!

and for taking the time to provide your detailed explanation, as well. I see that rasjax has also posted a detailed explanation to supplement yours, which I haven't yet digested. But this is the sort of thing I come to DU for - intelligent discussion on important issues. That which the media is incapable of delivering!

BTW, I noted an important aside in your discussion, Filius: "the President... shall take Care that the Laws be faithfully executed…" which is exactly why Chimpy Cuckoobananas is such a miserable failure- his actions reveal blatantly, to anyone who looks with any critical objectivity, that he doesn't give a damn about faithful execution of the laws, but only about how he can use them to advantage of his cronies and contributors.

Peace.

[Filius Nullius]

59. Gore: "Unitary Executive" really a "Unilateral Executive"

Constitutional protection of our individual liberties is being eroded at a rate never before experienced, and the media are utterly failing to shoulder their duty to report truthfully on what is happening and avoid complicity in Bush's arrogation of unprecedented power. For example, Al Gore's remarks at Freedom Hall in mid January constitute one the most important speeches that I have heard or read in the last 20 years--no, make that in my lifetime, and I am 53. The text can be found at <http://www.libertyspeeches.org/speechtext.html>. If you have not already done so, I urge you all to read his remarks in their entirety. They are not particularly long and are well worth the effort.

Gore charged that Bush has broken the law by authorizing warrantless domestic surveillance by the N.S.A. and that we are on "the brink of a dangerous breach in the fabric of the Constitution." Addressing the Bush Administration's "unitary executive" theory of executive privilege, he pointed out that it would be more aptly called the "unilateral executive" theory. For those of you who may not have been following this, Attorney General Alberto Gonzalez is one of the chief architects of the Bush Administration's so-called "unitary executive" concept. In a nutshell, it claims that the President, as the Chief Executive, has absolute control over the executive branch and all of its departments and agencies, to the point that the President can essentially ignore lawsuits and Supreme Court decisions on the internal functioning of that branch of the government. In essence, the executive branch is an island all to itself, immune from judicial process, with the President at the top calling the shots. It also avers that the President is the sole arbitor of the power of the presidency and the executive branch.

CNN and the rest of the mainstream media almost completely ignored the content of the speech. Their basic take on it was that Gore was trying to get President Bush impeached. The content of the speech is far more insightful, balanced and restrained than that. The media did the American people a great disservice in the way they reported (or, more accurately, failed to report) on this event.

The administration immediately trotted out Attorney General Alberto Gonzalez (one of the chief architects of "unitary executive" theory) in response to Gore's speech. The media immediately accepted what Gonzalez said as gospel and stopped covering anything substantive about the speech.

Adolf Hitler and Saddam Hussein went largely unopposed in Germany and Iraq when they began their campaigns to usurp power from their countrymen. Of course, the few who did challenge them were rubbed out. I do not believe we are nearly that far gone in this country ... yet. Nevertheless, the alleged justifications stated in Hitler’s and Hussein’s propaganda to their respective nations frequently hinged on so-called "national security" dangers and similar pretexts. It took wars with unprecedented levels of violence and destructiveness to finally get them out of power.

A couple of days after Gore's speech, another Bin Laden tape surfaced. The mainstream media began trumpeting the "New Bin Laden Threat" as a danger that may justify drastic measures. It is only a relatively brief audio tape, but CNN and other networks began playing it up into something of such enormous, overriding importance that some network commentators immediately speculated that it may justify allowing Bush and subsequent presidents to run perpetual roughshod over American liberties.

Shortly after 9/11, a few brave American patriots pointed out that if the country allowed fear of a relatively small, ragtag band of terrorists scattered throughout the globe to frighten us into allowing our hard-won liberties to be taken away from us, then the terrorists would have won. Unfortunately, we are now seeing the very kinds of usurpations of power that we were admonished to guard against come to fruition.

[crispini]

69. k & r

:thumbsup:

[Lasher]

74. What about treaty withdrawal?

Does the Executive have authority to withdraw from treaties, without the consent of Congress? For years now it has seemed to me that it does not.

Wednesday, June 12, 2002

US House Democrats Sue Bush Over ABM Treaty Withdrawal

Thirty-one Democrats in the U.S.House of Representatives filed a lawsuit on Tuesday against President George W. Bush, challenging his decision to withdraw from the 1972 Anti-Ballistic Missile Treaty.

Rep. Dennis Kucinich of Ohio, who led the lawsuit effort, said Bush does not have the authority to unilaterally withdraw from a treaty without seeking congressional consent first.

"The Constitution of the United States is being demolished and we need to challenge that in court," he said.

The lawsuit seeks a temporary restraining order to stop the pullout, and requests a decision on whether the Constitution allows the president to withdraw from the treaty without backing of Congress.

http://english.people.com.cn/200206/12/eng20020612_97666.shtml

[exlrrp]

75. THANKS FOR THE TRUTH!!!

Thank you so much for this detailed analysis.
I fear the same as you fear:
"Call me a tinhat conspiracy theorist, but I fear that if the President's claim goes unchecked or is approved by Congress, we can say goodbye to our civil liberties. Bush and his intelligence agencies will then be in a position to determine for themselves when such intrusions are "reasonable." My guess is that we will soon begin to see the range of situations in which they are deemed appropriate begin to expand, slowly at first and then more rapidly when the executive branch sees that there is no longer anyone guarding the gate. It will ultimately begin to invade the sphere of domestic politics, which will enable Bush and other sitting Presidents to intimidate their political opponents. This will further chill all opposition to the surveillance, which will inspire additional incursions, etc., etc.

Make no mistake about it, this is an attempt to overthrow the government, not by force of arms, but by seductive arguments preying on the public’s fear of terrorism. Hopefully, congressional Democrats and moderate Republicans, the mainstream media, libertarians and the general public will realize that the nation is gripped by one of the most serious constitutional crises in its history and will band together to suppress this putsch."

You are SO right!! The putsch has already started and lets not wait for the tanks to roll in the street. Never in my time, which includes the Macarthy and segregation eras, has the US Constitution been in such danger! And hidden danger at that, brought to us by our own "leaders"
Please!! Continue to write as you do and try and get it in more places. I hope you don't mind me quoting you for a long time to comee
Thanks again

[Desertrose]

76. Fantastic post!

thank you for sharing with us.

I hope some of our reps & senators get spines soon and don't let this miserable little "putsch" roll over the citizens and the Constitution.

Maybe your words of explanation may wake some people up to the incredibly serious nature of what bush is really doing. Much easier to stop it now than try to get it all back once its gone.

Thanks again , FN.

[Dembo98]

78. Question?

Being an avid reader and never wanting to sound stupid, I have been doing a lot of reading on FISA. As much as I don't like it, it seems to me that if you look at a couple court rulings (the "Keith case" and the "Truong case), the courts of appeal are unanimous in their decisions that warrantless wiretapping is OK when the primary purpose is for foreign intelligence. Even if one of the parties is an American citizen. Please tell me I am reading these rulings wrong. If not, it seems to me that the courts have already ruled and that it is legal. Someone help.

[LynnTheDem]

79. Again, the 2 cases you cite were BEFORE FISA.

The law since FISA is very plain & simple; ff you wiretap without a warrant it is ILLEGAL.

[creeksneakers2]

82. I haven't researched the whole thing but

Katz v United States:

Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.155

[BillORightsMan]

81. Thank you Filius Nillius and All

I had in the back of my mind that there was more than just a violation of Amendment IV vis-a-vis FISA. It seems this administration is trying this time to "baffle us with bullshit" rather than your analysis that is "blinding with brilliance"!

What is truly upsetting is that the lower courts have been stocked with Federalist judges over these last five years and the rest of the SCOTUS are aging, setting up a Judiciary Branch that will be corrosive to individual rights and protections offered us in the Bill of Rights for generations to come.

We are witnessing an attempted legal coup of the US government none have seen since circa 1800.

Kudos for the insightful thinking and analysis, one and all.

imbillorightsmanandiapprovethismessage :patriot:

[Nothing Without Hope]

84. I also believe that one reason the Bushies want this so badly is that

the NSA spy case is a test of their assertiion of total war powers. THEY WANT TO INVADE IRAQ WITHOUT CONGRESSIONAL AUTHORIZATION and have claimed to have this power on multiple occasions. These claims are based on the same thing as the NSA spy power grab is. If the NSA case is allowed to slide, expect them to up the ante. ANYTHING could be then be done without limit or oversight during war, and they plan for the wars to go on indefinitely. End of constitution, no exaggeration.

Bombing Iran is next. Read this:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x351690
thread title (2-7-06 GD): Anyone see the latest from Scott Ritter ?- OMG

Thread has one of those unfortunate titles, but it is a must-read. And it's not like any of this is a surprise - it's all been step-by-step for YEARS. Very consistent.

I also believe that the primary reason why GOPs, Dems and the media have failed to respond to the destruction of democracy isn't just greed and lust for power, it's also BLACKMAIL by the Bushies:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=342615&mesg_id=356055

[Untermonkey]

86. Actually, it's really pretty simple to sum up...

Since the Constitution does not grant such power to the President the President has no such power. Any law stating otherwise is unconstitutional and, therefore, null and void.