Friday, December 23, 2005

Daschle says Bush broke the law

And we all know how huge a constitutional scholar Tommy Boy is, so yeah... take this op-ed with a grain of salt.

Power We Didn't Grant

In the face of mounting questions about news stories saying that President Bush approved a program to wiretap American citizens without getting warrants, the White House argues that Congress granted it authority for such surveillance in the 2001 legislation authorizing the use of force against al Qaeda. On Tuesday, Vice President Cheney said the president "was granted authority by the Congress to use all means necessary to take on the terrorists, and that's what we've done."

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

Catchy title there. This really sounds more like a Monday morning quaterback whining "oops, we didn't mean to allow the president to actually 'fight' terrorism. And if we absolutely had to 'fight' terrorism do we really have to like know what the terrorists are doing?" Well Tom some would disagree with you that the AUMF does authorize wiretaps as an essential component in the "use of force" including Alberto Gonzales and Cass Sustein. Krauthammer writes,

I am skeptical of Gonzales's argument [AUMF authorizes wiretaps] it implies an almost limitless expansion of the idea of "use of force" -- while the distinguished liberal law professor Cass Sunstein finds it "entirely plausible" (so long as the wiretapping is limited to those reasonably believed to be associated with al Qaeda). Sunstein maintains that "surveillance, including wiretapping, is reasonably believed to be an incident of the use of force" that "standardly occurs during war."
It's OK Tommy. This legal stuff can be tricky.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Heaven forbid we give the man the tools he needs to protect us from terrorists. I can't remember... has there been another attack on the US? Has the Patriot Act or the AUMF violated anyone's civil liberties? Didn't think so.

The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.

Your shock and rage after 9/11 was more of a reality check from your safe little world where the most important thing in your day is choosing which $5 cup of coffee you want in the morning. Actually having to make decisions regarding naitonal security make you a little queasy. And why didn't you get re-elected?

All Americans agree that keeping our nation safe from terrorists demands aggressive and innovative tactics. This unity was reflected in the near-unanimous support for the original resolution and the Patriot Act in those harrowing days after Sept. 11. But there are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion.

Aggressive... good. Innovative... good. Hamstringing our intelligence and saying they can only listen to suspected terrorists if they live outside the US is dangerous is bad. If they have phone calls outside the US, we can listen to those, but as soon as they set foot on US soil their phone calls are off limits. You'd think that they'd realize the suspected terrorists that are INSIDE the US are inherently more dangerous to the US than those outside. But in the democrat's defense, common sense isn't their strong suit.

If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.

Well actually Tom it looks like most constitutional lawyer types kinda think that you're wrong.

Orin Kerr:
On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent...

[T]he 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.
John Hinderaker:

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.
John goes on to show all three cases refuse to infringe upon the president's inherent authoirty to conduct warrantless wiretaps for foreign intelligence information.

Hugh Hewitt:

The first question is the scope of the president's authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens. Apparently Congressional critics of the action do not believe it. There is no definitive Supreme Court precedent on the question, and the Congress cannot define the answer even if it wished to.

In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day.

That is how a great democracy operates. And that is how this great democracy will defeat terrorism.

From everything said thus far it looks as if the president went through the exact channels necessary by notifying the AG and the Intelligence oversite committee made up of a bipartisan group of Senators, and that should a legal case arise, the president appears to have a very strong case in his favor (Read all of Hugh's (1, 2, 3, 4, 5, 6, 7, 8, 9, 10), Powerline's (1, 2, 3, 4, 5, 6, 7) and Kerr's arguments). One rumor I've heard floated is the timing of the NYT's article. Based on that they'd been sitting on this for over a year, the thought is they may have initially intended to run it during the presidential election, were convinced not to due to national security concerns and instead ran the story about missing weapons caches in Iraq that had been supposedly trucked out right under our noses in order to embarrass Bush (read it on a blog somewhere, couldn't find the link again). Interesting, no?