War Powers

Jonathan Alter proves that there’s still a free press.

President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War. …

… I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.

Thirdparty at Kos has some questions about this meeting, here. Alter continues:

The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference.

I heard several cable television commenters make this same point throughout the day … we have not been told how the NSA snooping is taking place, only that it is. And certainly terrorists communicating with people inside the U.S. must have realized the feds would likely monitor their emails and phone calls. So how in the world has national security been compromised?

No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.


The flip side of what Alter says can be found at Protein Wisdom, where Jeff Goldstein quotes Dr. Walid Phares:

The question is clear: Are we or are we not at war with the terrorists?

It’s not a declared war, nor a war of limited duration, which makes extraconstitutional “war powers” of the president problematic. Never before has Article II Section II been interpreted to mean that the President can grab more power for himself whenever he wants for as long as he wants because he thinks it’s necessary for national security. During times of invasion or other emergencies the president temporarily may act without consent of Congress. And, yes, Lincoln and FDR both took on expanded “war powers” during the Civil War and World War II. But the “war on terror” could last generations, and it’s so hazily defined that we cannot agree among ourselves who we are fighting or what “victory” will look like. For these reasons Bush must be held in tighter check than Lincoln or FDR, neither of whom overreached nearly as much as Bush has.

While jihadist cells are constantly spying to find chinks in America’s infrastructure, President Bush’s critics are concerned about how America is watching the terrorists. So far, I haven’t heard a critic asking who are we watching?

Actually, a lot of us have asked who the NSA is watching. And a lot of us suspect it isn’t just alleged terrorists.

And here comes the Big Daddy of straw men:

Or anyone requesting an update as to how many terrorists are within the U.S. So, in sum, they want the government to “catch” the terrorists but not to “watch” them. I must admit that if the 9/11 Commission was right on target regarding some fellow Americans; it is about “lack of imagination.” For till further notice, I am not able to figure out how the U.S. can catch the jihadist terrorists if it doesn’t monitor them.

See, nobody is saying we shouldn’t conduct surveillance. We are saying the surveillance must be conducted within constitutional parameters, and so far the President and his crew have not shown one good reason why they had to go outside FISA to snoop on Americans.

And how can the defense and security institutions monitor an enemy in a state of war, if it provides them with the knowledge and the technology it is using.

But that hasn’t happened.
I haven’t seen a single news story that provides information about what technology is being used or how the surveillance is being conducted.

I think this story is going to be with us for a while. Fasten your seatbelts.

9 thoughts on “War Powers

  1. Joe Biden:

    I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed . . . Under the Constitution, . . . there is no distinction between a formal declaration of war, and an authorization of use of force.

    And here’s Byron York on problems with FISA; and Froggy Ruminations on likely reasons for circumventing FISA altogether.

    A more questionable argument — and the one I favor — is that warrants weren’t in fact necessary given the contingent status of those being surveilled, and argument that relies on a particular reading of FISA. James Robbins outlines that argument well here.

    And another thing to consider is this, as expressed by a commenter on Tom Maguire’s site:

    “An ex-NSA agent on CNN speculated this program was most likely an automated system, generated from a communication from a known terrorist and branching out to collect all the numbers that communication reached, then the numbers those numbers called, and so on. Hundreds of communications (or maybe just telephone numbers) intercepted, not all listened to. But too high volume and too instantaneous to make warrants feasible for each.

    Just as a warrant wasn’t issued for all emails in Echalon, a warrant wouldn’t be issued for all of the communications in the new program. Graham could easy see this as a new technology rather than a new policy.

    Had this been presented as ‘survelliance of terrorists on American soil’, politicians would have no reason to CYA. But throw in the words “Spying on Americans” and the denials are going to crawl out of the woodwork.

  2. What does a bully do when backed into a corner? He bellows, puffs himself up and makes threats and tries to justify himself and have himself declared the victim. Bush is in a corner.

    It’s Bush’s nervousness and the attempt to shut down the New York Times on this story that suggests you’re right and that there’s a lot more to this story.

    Who’s being spied on? How many are being spied on? With what technology are these people being spied on? And is it only for al-Qaida type terrorism or does this involve loose interpretations of threats, or, worse, pure politial spying like the kind that Nixon engaged in?

    Bush has already bypassed the US Constitution on other occassions but this is a very specific violation that apparently involves the failure to get warrants. He’s clearly impeachable. And he’s been overreaching for a long time.

  3. Wow. Evidently Craig is unimpressed.

    I saw two constitutional law profs — Paul Rothstein and Jonathan Turley — split on this. Turley thought the president had received bad counsel and could have broken a federal law, though he believed the offense was not impeachable, as Bush went through the correct stages for legal review (for more on procedure from a former intel officer, see here); Rothstein said that Bush was within his Constitutional rights, and that whether or not he violated FISA was dependent upon those surveilled (which is close to my own view). Still, FISA statutes cannot constrain a President’s Constitutional powers under Article II.

    The question here is, under which paradigm do we judge executive powers — war time (following the joint resolution authorizing the use of force against al Qaeda, which by Biden’s light is tantamount o a declaration of war)? Or civil / law enforcment? Most of us on the right believe the former — and so we see in the President’s actions nothing illegal.

    Also, the 4th Amendment pronounces against unreasonable searches without a warrant. Does monitoring a phone number found on an al Qaeda cell phone or computer represent an unreasonable use of warrantless power? How about searches in line at airports?

  4. Jeff G, once again we read a right wing excuse for this President’s abuse of his Constitutional duty. No reasonable person is concerned about tracking numbers found in an al Qaeda cell phone. If such evidence were at hand then the FISA court would rubber stamp the tracking as they tend to do. The procedure of getting approval is the only one that we have that guards against unreasonable searches. We have no way of judging for ourselves because it is secret. It is the possibility of domestic political spying that I fear and the procedure of judicial overview may make this less likely. Since the spying can be approved retroactively, timeliness is no excuse. I fear unchecked secrecy. I fear unchecked powers’ tendency to metastisize.

  5. Jeff G, the only people Bush is hiding the truth from are the American people. The FISA court would have rubber stamped any spying on potential terrorists, even retroactively. If he can’t take it to the FISA court, the only reason must be that he is doing something blatantly unethical and he doesn’t want there to be a record. And as far as the “unreasonable” quibble is concerned, the meaning of this has been interpreted through many decades of case law and never before has any court approved of warrantless spying of American citizens in the U.S.

  6. Once again, Bush had to win the election in 2004. If all this had come out while he was out of the public eye it would have looked like a vendetta not justice being served.(could we get a side of freedom fries with that?)

  7. Bush supporters remind me of pathetic family members trying to justify their druggie teenager’s ‘goodness’ to the larger community. Bush and his insider gang have been stealing the family resources for years now [obscene deficits, family savings depleted through ‘tax break’ gifts to his buddies, etc] and destroying the family’s values [real Christian values to protect the environment and to support the poor; the valued rules of national and international law and the morality of openness and upright fairness] in his growing addiction to the heady drug effects of unchecked power. This teenage mentality President is wrecking havoc on the larger community, but his ‘family’ is in denial.

  8. I don’t doubt that the right will trot several people out to tell us Bush has the right , as president, to do whatever he see’s fit, including breaking the law.You can say it a hundred times but that won’t make it so.

    If the president wants to wiretap American citizens he is already allowed to do so BUT he has to follow the FISA law.He can wiretape people for up to 72 hours before even asking FISA for the proper warrant, so his hands are not tied..FISA , in it’s history , has only rejected 4 requests since 1978 ..it is a rubber stamp , so JEFF , what I really want to know from you is why you believe Bush Bush should be allowed to break the laws of this nation.

    See, the problem JEFF, is that the constitution doesn’t have a terrorist clause that voids it.The constitution does not make exception for leaders to break laws, so you are really making a case to change our constitution, and your really pissing in a nasty wind storm there pal, AND your still not making any kind of rational arguement for why bush has broken the law legally.

    When you come up with a reason WHY bush could not go to the FISA court and obtain warrants LEGALLY I will listen.THAT is the question here,, not if a terrorist was on a train going south at 55 with a cell phone.. your making a story problem that is totally unrelated to SPYING ON AMERICANS.Before you defend president bush over the constitution you better at least be able to explain WHY bush could not go to FISA to obtain the warrants as the law requires.How can you defend potentially giving up the 4th amendment rights of an entire nation when you can’t even explain WHY bush COULD not go to FISA?

    Just a few more things for you to think about JEFF,,The constitution has stood in this nation for over 200 years .TROOPS fight and die not for US ,, but for the constitution, AND you come in here ready to piss off what our forefathers fought and died for because of a terrorist?? People thought this document was worthy of dying for , but you are now willing to toss it out to save your sorry ass from a “terrorist” with a cell phone?
    This document has stood thru worse mess then Bush has gotten us into JEFF,,WORLD FRIGGIN WARS couldn’t take this document down(much worse then a few terrorists) civil war couldn’t take this document down…and now it seems the constitutions worst enemy is within our own nation ..Bush and his band of merry lackies see the presidents actions as “nothing but legal”…Why JEFF do you hate the constitution?

    The JEFF’S of this country better stop and think what they are doing defending the president when they don’t even know who was tapped.They are so fast to declare the president innocent, yet they don’t call for a full accounting of who was wiretapped , outside of the FISA laws..Will JEFF declare he was wrong when we learn bush wiretapped outside FISA, because who he tapped was WAY out of line? The press maybe? His Mother?The DNC? or is that ok too?

    One other thing for JEFF to think about, is how much will he like it when dems are in power wiretapping him illegally?Maybe his anti constitution speech could be considered an act of terrorism.I certainly am starting to see it as one.When a man puts himself before the constitution of this great nation what should we call it?

    I find it ironic to have my EMPLOYEE say his is justified in spying on me , and then claim he doesn’t have to tell us about an energy meeting that creates public policy. The NSA should be spying on Americans alright,, it should be spying on Bush and his band of thieves,,HE works for us remember? If he is keeping secrets about laws he has broken from his employer (us) we have to know.

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