Wednesday, December 21, 2005

What war powers?

With regard to the latest spying scandal, the one defense the Republicans (or, should I say, the Bush sychopants, since I know a few Republicans that have no taste for something like this) have used is that wartime powers give the President the authority he has taken in approving warrantless searches on U.S. citizens. The standard counterargument is that no wartime power granted recently or previously in U.S. history can override the 4th amendment with the exception of the clause that allows for the suspension of Habeas Corpus, but Habeas Corpus can only be suspended by consent of Congress and not by executive order alone; and furthermore, notwithstanding the fourth amendment, nothing has so far been found that overrides the provisions of the 1978 Foreign Intelligence Surveillance Act, which forbids electronic surveillance on U.S. persons without a warrant or court order from a court of competent jurisdiction.

So there you have the main argument, and it seems to me that the President and his minions have legal little ground to stand on. But I'm going to venture on to ground on which Democrats thus far have not dared to tread. I'm going to ask: wartime powers? For which war?

You see, I'm going to challenge the contention that Bush has any war powers at all relating to this case.

In his press conference defending his authorizations, the President brought up the Authorization for the Use of Military Force. This central part of this resolution--an appropriate but vague authorization allowing retaliation for 9/11--allows the president the following power:

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.

So there you go. The war powers that Bush is claiming as authorization for his wiretapping--"so he can use force but he can't do surveillance?" is the standard refrain from the right-wing blogosphere--seem to apply only to those with direct involvement in the 9/11 attacks. The war powers in question, by my reading, do not extend beyond punishing those who attacked us. The president has the authority to determine the persons, organizations or nations involved in the 9/11 attacks--this much is true. Ignoring the question of whether Bush's war powers actually enable him to conduct warrantless spying at the sole behest of the executive, Bush would have to officially determine that every single person on whom he authorized this program has involvement in, or aided in some way, the attacks of September 11th.

Technically speaking, then, Bush would have to demonstrate clearly that every U.S. person upon whom surveillance has been conducted is a member of or has ties to Al-Qaeda to justify using his war powers. Technically speaking, anyone with no involvement in any organization related to September 11th--even if they are known members of other terrorist organizations--is not a subject of the authorization of the use of force.

Am I saying that the government should not target, or pay less attention to, such persons? Absolutely not. The government must do its utmost within the law to protect the American people while preserving civil liberties. What I am saying is that even if it were found that Bush's war powers under the Use of Force Authorization allow him to conduct domestic surveillance, he would first have to prove that the targets actually fall within the specific wording of the Authorization approved by Congress. And I sincerely doubt that he can.

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