Jammed off the radar yesterday by the Jon Benet Ramsey “killer” confession story was something of actual importance that genuinely affects all American citizens. If not for the print media and the blogosphere, I myself wouldn’t have known about the ruling by U.S. District Judge Anna Diggs Taylor on the NSA domestic surveillance program.
But even some of the “deeper” print news outlets gave the story of the court ruling a surface treatment. The Washington Post headline read “Federal Judge Orders Halt to NSA Wiretapping.” Nothing could be more misleading, or feed better into the agenda of the autistic right.
Judge Taylor didn’t order a halt to NSA wiretapping. She ordered a halt to NSA wiretapping on certain American citizens without FISA court issued warrants. Under the congressionally passed FISA law, those warrants are about as hard to get from the court as a six-pack of Coca Cola from your corner 7-Eleven. As Josh Marshall noted last December, “FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one ‘as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.'”
Tommyrot from the Right
Predictably, according to the New York Times, “Administration officials made it clear that they would fight to have the [Taylor] ruling overturned because, they said, it would weaken the country’s defenses if allowed to stand.”
Attorney General Alberto Gonzales, who was a primary architect of the warrantless wiretapping program when he served as White House Counsel said that administration officials “believe very strongly that the program is lawful.” Well of course they believe that. They believe that there are no limits to presidential powers, especially in time of “war.”
Judge Taylor, however, concluded that warrantless wiretapping of partly domestic phone communications is “obviously in violation of the Fourth Amendment.”
The administration has consistently based its claims of “unitary” and “plenary” executive powers on Article II of the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 days after the 9/11 attacks. Yet, Article II makes no mention of a president’s war power authority other than making him commander in chief of the military. It makes no distinction of his powers in this role between wartime and peacetime, it makes no provision for his ability to suspend any other part of the constitution in wartime.
The AUMF states that, “Nothing in this resolution supercedes any requirement of the War Powers Resolution.”
The “War Powers Resolution” referred to is the War Powers Resolution of 1973, which says, “Nothing in this joint resolution…is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties[.]”
Many assert that all the debate over presidential war powers would disappear if Congress formally declared a state of war so the “War Powers Act” could go into effect. But that too is a frivolous claim. The only “War Powers Act” currently in force is the aforementioned War Powers Resolution of 1973, which as we already noted, specifically denies any change to a president’s constitutional authority in time of war.
And as Judge Taylor wrote in her decision, “There are no hereditary kings in America and no powers not created by the Constitution.”
That won’t stop the administration and its echo chamberlains from continuing to argue otherwise. But expect to wait a long, long time before you hear an explanation of why having to get a warrant to wiretap Americans three days after the fact will “weaken the country’s defenses.”
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Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at ePluribus Media and Pen and Sword.
Also see Jeff’s Smoke, Mirrors and War Powers.
These are just some more baby-steps on the way to authoritarianism. Any sort of war powers measures are bizarre to begin with considering the United States was not at war in September 2001, it was the victim of a very large, well-executed criminal act. You don’t prevent terrorism with military forces any more than you can prevent murder by dropping bombs on neighbourhoods with high-crime rates. My hope is that Bush will be a high point of the Imperial President, much like Nixon was the last high point of the Imperial Presidency. Then Congress can try and pass a pile of laws to make basically everything Bush did illegal.
The very premise of a “war on terror” is a joke, in the same way that the “war on drugs” is a joke. The terminology of war has been degraded to the point where we have essentially declared war on anything that scares us. If you are one of these conservative bed-wetters and afraid of everything outside of your McMansion, that’s a lot of bombs to drop. These idiots will cede every right they have (and a bunch they didn’t even know they had) to the government for the illusion of security. The irony for me is that these morons will give Bush a blank cheque to protect them from terrorism, but they’ll continue smoking, drinking excessively, polluting the air, stuffing themselves with fatty foods and driving unsafely, all of which are behaviours far more likely to kill you than the odds of being killed by a terrorist explosion. God Bless America…
As an aside, it’s strange, American leaders seem to declare war on a lot of things, except for the countries they bomb the shit out of…
I just thank my Maker that we’re finally seeing the other two branches of government making baby steps to reassert their own constitutional authorities.
Really, I think that the Democrats are blowing a historic opportunity here. In Canada, former Conservative Prime Minister Brian Mulroney was unpopular and opposition parties and the media hammered away on him until his popularity levels hit a low of 12% if I remember right. It basically destroyed conservatism at the federal level for 15 years.
If there was ever a time to pile on, it was now. This is the time to associate everything crappy in the world with the failures not of the Republican party, but of conservatism itself.
…that nobody wants to have been seen as hindering young Mister Bush’s ability to “protect America” if another 9/11 happens.
Your point is well taken, but Bushco is hindering Bushco’s ability to protect America, IMO.
I seemed to have forgotten when Congress declared war and on whom. Can someone help me out here?
there’s much of a difference between “declared” and “undeclared” war any more. The War Powers Resolution of 1973 gives a president a max of 90 days to keep troops in combat without congressional approval.
But whether a war is declared or not, there is no such thing as a “war powers act.”
The only presidential power on the books that I know of is the provision in FISA that gives a president unlimited warrantless wiretapping authority for the first 15 days of a conflict.
Exactly, 90 days. As I recall, that is left over from the Cold War, as Congress would’ve been wipe-out by Soviet ICBMs before they could even be notified to convene. The President had to have that authority to respond. So the crux in the matter now is the “congressional approval” for the current fiasco. The approval based on falsehoods. The Congress really cannot, in my opinion, be blamed for this with the information they were given. I don’t fault them for trusting the president either because, well, once upon a time before the current buffoon, the Office of the Presidency held a certain level of trust and respectability and protocal dictated that in an issue so serious as what was presented, the President always had the benefit of the doubt – (ok, you got me on Nixon).
I’m still under the impression that without a declaration, it is still not a war. Vietnam was a “police action”, my war in Panama was an “invasion”, other’s “interventions”. My point is that with all of this “war” talk/framing, people actually believe we’re in “war”. It also concerns me that anyone convicted of “treason” can only be executed in time of war – not a police action (as I understand it) so the parameters of the framing of “war” is a very important issue, legally and morally. So I guess that is what I was trying to get at.