From: Daniel Chirlin <djc2106@columbia.edu>
  To  : cpc@emoglen.law.columbia.edu <cpc@emoglen.law.columbia.edu>
  Date: Sat, 04 Mar 2006 14:38:06 -0500

Inherent Power? AUMF? Who are they Kidding? A Look into theDOJ Justifications for NSA "Terrorist" Surveillance (Paper 1)

As if it were not enough that our government is conducting a secret
=B3surveillance=B2 program of dubious legality, must they constantly hedge and
lie about it?  But it is politics as usual in Washington as Attorney Genera=
l
Gonzales recently released a letter to the Senate Judiciary Committee
following up and clarifying his oral testimony about the NSA domestic
surveillance program.  The letter interestingly notes that the President
authorized the program before the Patriot Act even passed.  Also, it
strongly suggests that the administration initially relied on an Article II
inherent power justification, and the AUMF argument that the administration
currently puts forward is pure revisionism.   Because there are far too man=
y
covert reasons to be concerned about the state of personal privacy, perhaps
it is beneficial that the administration made such a colossal blunder.  It
brings privacy concerns deservedly to the forefront of our consciousness.
However, in order to stake a claim to that benefit, we must attack the
foundations of the government=B9s reasoning.
           =20
We should early reject any serious claim that the government conducted this
surveillance for purely sinister domestic purposes.  It is probably true
that concerns about terrorism predicated the program, and it was designed t=
o
combat that threat.  Cynics may believe terrorism to be pretextual, but tha=
t
seems wrong.  However, the reality remains that the NSA program is vastly
over-reaching and Gonzales ultimately fails in his justification efforts.
=20
The administration chiefly relies upon the two-headed hydra of Article II
and the Authorization for the Use of Military Force Resolution (AUMF).  The
Department of Justice=B9s (DOJ) position has likely evolved from an initial
reliance on John Yoo=B9s now infamously radical expansive theory of
Presidential wartime powers to a relatively toned-down reliance on
Congressional mandate.  Gonzales claims that the shift simply reflects that
the Department=B9s =B3legal analysis has [not] been static over time,=B2 whereas =
I
suggest instead that the shift underscores the larger problem =AD the
government=B9s disrespect for privacy and the rule of law.  No doubt, the
administration switched tacks as a result of the Court=B9s Hamdi ruling which
narrowed the scope of the inherent power claim, while simultaneously openin=
g
the door to an AUMF argument.  But fancy legal reasoning does not obviate
the necessity for explaining how such a program might be authorized on
dubious legal premises in the first place.
=20
Flying literally in the face of FISA, the President authorized an action
actually criminalized by that statute.  Any reasonable reading of Jackson=B9s
Youngstown concurrence suggests that in such a case the President=B9s =B3power
is at its lowest ebb,=B2 though arguably there is more wiggle room in
questions of foreign affairs. Still, the administration persists on
conflating a default Presidential power with an exclusive one in making its
inherent power claim.  Worse than negligent, such rhetoric is simply
intellectually dishonest. But really it is Hamdi that puts a nail in the
Article II coffin, circumscribing the administration=B9s inherent power
justification. O=B9Connor=B9s majority opinion soundly rejects the
administration=B9s argument that the President has plenary power in a state o=
f
war, and reaffirms the foundational separation of powers regime.
=20
Even allowing that the administration built the =B3Terrorist Surveillance
Program=B2 on the foundation of the AUMF,  significant legal questions arise.
For instance, the dispositive statement that the President is =B3authorized t=
o
use all necessary and appropriate force=B2 occurs under the heading of
=B3Authorization for the Use of United States Armed Forces.=B2  It seems clear
to me that =B3appropriate force=B2 refers to =B3military=B2 force and I think it
quite a stretch to label the NSA =B3armed.=B2  Therefore, to make an argument,
as Gonzales does, that the AUMF puts the President in the Youngstown
Category I is sheer folly, especially in light of the plain meaning of FISA=
.
(Gonzales, oral testimony, Feb. 6, 2006).  After all, the Congress was not
contemplating the authorization of a surveillance program when they passed
the AUMF.  They thought they were already dealing with that issue in the
adoption of the USA Patriot Act.
=20
Perhaps the most puzzling of all is the current malaise concerning the
reauthorization of the Patriot Act.  What seems to elude much of the
mainstream media is the apparent inconsistency between the administration=B9s
insistence of the dire necessity of the Patriot Act and the legal position
concerning the =B3Terrorist Surveillance Program.=B2  An even cursory glance at
the Patriot Reauthorization Act reveals that it is chiefly a series of FISA
amendments.  It baffles as to why the President calls this so =B3vital to the
war on terror=B2 =AD this revision of a statute that he maintains he has no dut=
y
to obey.  Even more perplexing is his statement that this Act will serve to
=B3safeguard the civil liberties of the American people.=B2  Something stinks
here.  The Patriot Act/FISA seeks to restrain an administration that claims
the power to avoid such restraint.  And that same administration
simultaneously maintains the absolute necessity of reauthorizing said
restraint.  No doubt, Gonzales recognizes the delicious irony even while
dancing around it.   Frankly, it makes one wonder whether the entire Patrio=
t
Act were not a smokescreen to conceal the real =B3war on terror.=B2 [1]
=20
Finally, a clarion call for cynics sounds loudly in A-G Gonzales=B9s letter.
He explicitly represents that he testified =B3only as to the legal basis of
the activity confirmed by the President=B2 and reiterates that the
=B3interception of purely domestic communications=B2 would require a different
legal analysis.  (p. 5)  This slippery rhetoric oozes of lawyerly parsing
and almost screams that warrantless domestic spying occurs, even while
remaining =B3unconfirmed.=B2 [2]
=20
Of course, this controversy is really just the tip of the iceberg.
O=B9Harrow=B9s =B3Nowhere to Hide=B2 unveils a prescient vision of the future
information-industrial complex.  With the explosion of data-mining,
biometrics, visual recognition software and lavish governmental patronage,
=B3electronic surveillance=B2 is rapidly becoming a fixed reality.  Hopefully,
the exposure of our government=B9s deceit and illegal machinations will help
to unveil the wizard.  Even now the ACLU and Electron Freedom Foundation
pursue legal actions to pull back the curtain. [3]  We can only hope that i=
t
is not too late.
=20
[1] See http://www.anonymousliberal.com for a further analysis.
[2] See=20
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/02/AR200603020=
1
783.html for further speculation
[3] Courtesy of =B3The Nation=B2 =AD Tim Shorrock (March 20, 2006).



-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list