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.