Friday, August 18, 2006

Bush Ain't Got No Stinking War Powers

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.'"

Rumble 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.

6 comments:

  1. LOL, Lurch. You're right. I owe the autistic community an abject apology.

    I was going to provide links to some of the loonier Freepy reaction to the ruling, but decided those characters don't deserve the free advertising.

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  2. I caught your jist, Lurch. ;-)

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  3. U know... when I read these comments I feel stupid. I need a translator!

    But I shall plod on and endevear to understand...

    so... under the Bush administration was there ever not a "time of war"?And if Bush is to be believed that everyone without democracy will (or rather - is) attack the US because it is the ultimate democracy -then how long will the US be at "war"? Wouldnt that mean that the US will be in this state of war indefinately (because it doesnt look like the whole world is ready to convert yet)? And can u indefinately be in a state of war without it just becoming the norm??? I mean, according to Bush's definition we are at war at the moment, and have been since 9/11... so for many, this war is already the norm because its so subversive and covert...a war that is unfelt by most.

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  4. Here's a guy who responds to a ruling he doesn't like with "I strongly disagree with this decision," without providing an iota of a reasoned response to the actual ruling or its contents. The subtext seems to be that he he will continue to do whatever he wants, forever, and let the gears of the court grind on, rather than provide any defense for his postion. He has no respect for law, nor for the Constitution itself, nor for the Congress, nor for the country (or world) at large. I fully expect that he will ignite a conflagration beyond our wildest nightmares, and then suspend elections "for the good of the country." The guy is run by Straussians, whose credo is that the leader-elite class MUST lie to the masses, for their own good. That he was put into office (twice) under more than "questionable" circumstances only adds validity to Lurch's prediction, a prediction I am sorry to say that I share.

    At some point, Americans need to understand that they no longer live in a democracy, that what we think is the "political process" is largely a display for show, to provide a relief valve mechanism to pacify the masses. This country is run by money, plain and simple, and the money runs this Administration to a degree not seen in recent memory. Viewed through that lens, endless wars, destruction, and "rebuilding," pre-emptive wars, letting New Orleans drown, inept "homeland security," rising poverty and homelessness, and all the other present-day ills make perfect sense. There are people who stand to make a fortune from every one of these tragedies, and they intend to do so.

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  5. LOL. Wherever you guys wind up, enjoy the meal.

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  6. Kathleen,

    Good points. Mus also makes an accurate observation about whether or not the court can really make its rulings sick. (Mus, was it Andrew Jackson who when handed an unfavorable court ruling coined the phrase about "you and whose army" were going to enforce it?

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