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Tuesday, February 07, 2006

you see, it's the whole checking and the balancing part that you don't seem to get

It's actually become kind of hilarious to read about and listen to the Bush Administration (and their luckily few allies on this) try to defend their warrantless wiretapping. This New York Times article is either the most biased piece of trash ever written (and colluding with the Senate Judiciary Committee), or these people are kind of out of their gords. My favorite give and take from the article:
"In all honesty," Mr. [Senator Lindsey] Graham told Mr. Gonzales, "this statutory-force-resolution argument that you're making is very dangerous in terms of its application for the future." An expansive reading of the 2001 resolution, Mr. Graham said, may make it "harder for the next president to get a force resolution if we take this too far."

Mr. Gonzales maintained yesterday that the two enactments "complement each other."

The committee's chairman, Senator Arlen Specter, Republican of Pennsylvania, responded, "Well, that just defies logic and plain English."
But wait, it gets better.(more in expanded post)
Mr. Gonzales conceded that his was not the only possible way to harmonize the two Congressional actions. But the administration's reading is, Mr. Gonzales said, "fairly possible."
Ladies and gentlemen, the Attorney General of the United States of America is presenting a legal case regarding spying on its own citizens to the Senate of the United States based on the conviction that his legal position is "fairly possible." My mind has been blown. This can't be right. No one's that crazy. But the Financial Times represents the issue similarly. Quoting Gonzalez:
"“No communications are intercepted unless first it is determined that one end of the call is outside of the country, and professional intelligence experts have probable cause [that is, "reasonable grounds to believe"’] that a part to the communication is a member or agent of al-Qaeda or an affiliated terrorist organisation.”
I almost imagine Senators wanting to say to him:
"Yes sir, Mr. Attorney General. But the point of the separation powers... yes there are three co-equal branches of government. Yes sir, we're called the Congress, the Legislative Branch. Anyway, the point of the separation of powers is that we'll feel a lot better if one of us, the other branch is called the Judiciary, does the part where we determine what is and isn't reasonable. Right, that part. You see, that way we share power. Yes sir, share."
Am I missing something or is this just weird? I honestly hope I'm just confused, let me know if I am.


At 4:05 PM, Blogger Pyrrhus said...

Yes, I think you are missing something (re:"Anyway, the point of the separation of powers is that we'll feel a lot better if one of us, the other branch is called the Judiciary, does the part where we determine what is and isn't reasonable").

When a delegation of authority is made on "reasonable and necessary" grounds, a good deal of deference is generally given to the party receiving authority to determine for themselves what is and is not reasonable.

Consider the conjunction of Commerce/Necessary and Proper Clause powers given congress under the Constitution. Repeatedly, the Supreme Court has given great deference to Congress's ability to determine for themselves what is and is not "necessary and proper" in regulating commerce between the states. The period in which the Supreme Court refused Congress this latitude (the Lochner era) is generally repudiated on the grounds that the Court was not suited to adjudge the propriety of economic legislation.

I think it is a fair point of debate whether or not AUMF, in its grant of "all necessary and appropriate force", includes, as a potential "important incident of war" (to use the language of Hamdi), the power to wiretap without warrant international phone-calls from the US. But if it does grant this power, then the President (and the subordinate departments to whom he delegates this power) should be understood to have significant discretion in exercising it.

At 5:09 PM, Blogger andrew golis said...

Yes, but my understanding is that you can only read specifics into general law when the details aren't explicit elsewhere. FISA is quite explicit and specific.

At 6:08 PM, Blogger Pyrrhus said...

I have not seen this argument elsewhere. I assume, given Hamdi, that it is either incorrect or has insufficient force to settle the issue.

FISA, "explicit" or not contains exactly the sort of vague invitations to statute that were used to create a power of detention under AUMF in Hamdi (how "explicit" is legislation which contains "explicit" openings through which supplementary legislation can act?).


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