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."


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.


  1. The Judge made exactly the right decision. I said when the story first broke that these wiretaps were unconstitutional, and as I recall the majority of experts in the area shared that opinion. I predict this decision will be upheld all the way up the chain, including by the Supreme Court, and that the action will finally decided to be unconstitutional at that point. You simply can't have the government doing this sort of thing unless you're willing to fundamentally abandon the 4th amendment as it currently stands.

  2. I would agree with Musmanno in general, although I admit to some doubts at SCOTUS level because of the recent addition of two right wing ideologues. (And if anyone thinks Federal Society members are NOT ideologues, you're dreaming.)

    More importantly, from the standpoint of political correctness, Jeff, you've done the autistic communuity a grave disservice with this post. But from the standpoint of potent agitprop - 5 stars.

  3. I posted too fast - the grave disservice to the autistic community lies in the conflating of them with wingers and thei fantasies.

  4. 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.

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

  6. Lurch:

    I disagree. Having been a member of the Federalist Society as well as the National Lawyers Guild (the two are polar opposites on many issues), I can tell you that people who adhere to the principles of the Federalist Society are likely to be opposed to the NSA wiretapping without a warrant (Mr. Levy, a Federalist Society member as well as Cato Institute member sets forth some reasons as to why the Federalist society would oppose this sort of thing).

    Second, there's no indication at all that either Roberts or Alito are going to be bound to the present administration or to being ideologues of any sort. Alito, in his first decision, broke away from the conservatives.

    Justices at the Supreme Court level tend to try and reach what they feel is the correct conclusion. The breakdown is often ideological, but not because either side is being disingenuous. If you have conservative and liberal Justices on the court, you're going to have jurisprudence that goes along with it. That is going to determine how Justices view things.

    The fact that these guys are in the Federalist Society makes them less likely, not more likely, to uphold these warrantless wiretaps, since the Federalist Society is largely libertarian in philosophy and libertarians aren't generally going to sit still while the government grasps additional powers at the expense of the people.

    So I think you'll find you're wrong about this. One can hope, anyway. So far, I haven't seen anything to suggest that Roberts or Alito will abandon principle in order to sustain the administration's program.

  7. Lurch:

    A clarification - the Mr. Levy I'm talking about is Robert Levy. A member of the Federalist Society and also a guy who was called upon in Congress to testify as to the legality of the wireless surveilance program. His conclusion in that testimony? It is Illegal.

  8. Lurch:

    One last question. I don't know if you're familiar with the National Lawyers Guild, but if the Federalist Society are a bunch of ideologue, so are they (they may even be ideologues on steroids - I was in both groups). The Judge who made this ruling against the NSA wiretapping (and with whom I agree completely) was in the National Lawyers Guild. So if having been in the Federalist Society makes Alito and Roberts ideologues, does having been in the NLG make this Judge an ideologue? And if so isn't that just as bad?



  9. Musmanno, thanks for the clarifications. I will take your information on an advisory. I am pretty confident this will end up at SCOTUS, because the NSA wiretapping, while listening for overseas chatter is primarily aimed at monistoring domestic dissent. All I will say is I knew this in my heart before I knew it intellectually.

    By the way, considering Mr Bush's adamant insistence that this program is necessary for "national security" I'll say it agains:

    Does anybody really think this guy is planning to leave the Oval Office in January, 2009?

  10. Yeah, he's planning to leave. That's one conspiracy theory I haven't seen any evidence to support. He'll leave. No doubt about it in my mind. Do you really think he won't?

  11. 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.

  12. Yes, Musmanno. He's not going to all this effort to create a dictatorship just to hand it over to someone else.

  13. 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.

  14. Kathleen:

    If you're right, then we run into a separation of powers crisis of sorts. What happens when the judiciary says "you can't do X" to the executive, and the executive says "I'm doing X anyway." The executive has the easier time winning that because the judiciary, in and of itself, can't enforces its rulings.


    I'll be you a Kansas City barbecue dinner he leaves office in January '09 :) If he doesn't, you'll get a nice meal before we go get the guns.

  15. Winslow's or Oklahoma Joe's? I've been to Fiorello's - I don't know which one, and wasn't all that impressed. Arthur Bryant's was kind of nice, though.

    ::Softly hums a medley of Wilbert Harrison's hit::

  16. Arthur Byrants is good. So is Gates. Fiorello's is so-so (the hickory put beans are the best thing they have).

    But I'm open to any place you like :)

  17. Just so long as they have seconds.

    Note to Jeff: I'm gonna make his wallet cry ;)

    Now, if I lose, I hope you don't mind standing in line a while. I'll take you to the best sop kitchen in Florida. LOL

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

  19. 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?

  20. Jeff, you, Kathleen and Musmanno have hit upon the problem with things as they are right now. We are a nation founded upon laws and the unversal respect thereof.

    What happens when one has a criminal government? Just how does a court - any court - of final jurisdiction enforce its opinions? Does the 3rd Court of Appeals or SCOTUS call the US Marshals and say "Go arrest this prick. We told him what the law says and he gave us the finger." ?

    Musmann, you're more of a lawyer than I am - just how do you go about enforcing an opinion that an executive (as only one example) flat out refuses to obey?

  21. Jeff:

    Andrew Jackson had a famous phrase about Justice Marshall where, in reponse to a ruling he didn't like, he said something like "Marshall made his decision, now let's see him enforce it." He may have also said the "you and whose army" quote. I'm not sure about that one.


    U.S. Marshals are under the purview of the executive branch. The President appoints them and the people who supervise them. Technically, I guess, they answer to the President, so if the Court calls the U.S. Marshals and says "arrest so and so," well, they don't have any authority to make that command. And if the President says "no, don't arrest so and so" I imagine the Marshals will listen to the President.

    Of course, if you had a completely corrupt President, I suppose at some point there would be a breakdown in the executive and the President might well be taken into custody. But the way our system is set up, the judiciary relies on the other branches to enforce its rulings. This is one of the reasons Justice Marshall called it the "weakest" branch in Marbury v. Madison, when he argued for (and took) the power to render ultimate judgment on the Constitutionality of things done by the other branches.

  22. Lurch:

    An addendum - in the past, such as when Lincoln told the Supreme Court to go jump in a lake, the order of the Supreme Court simply went unenforced because the executive refused to abide by it.