Gonzales on the NSA Surveillance
Dec-20-05 02:42 pm
In the wake of the recent revelations that the President authorized the National Security Agency to conduct surveillance of American nationals in the United States, there has been little discussion of the specific legal arguments that would support the President's position. As noted in a previous post, In his weekly radio address last Saturday, President Bush contended that his actions were "consistent with U.S. law and the Constitution," but did not cite any specifics. Similarly, in his press conference on Monday, the President did not provide any more specific legal arguments. Instead, he deferred to the legal arguments being made by Attorney General Alberto Gonzales.
On the CBS Early Show, Gonzales said the following:
In other words, the Attorney General is claiming that the the Joint Resolution for the Authorization of the Use of Military Force (AUMF) adopted by Congress in the wake of September 11th constituted a statutory exception to FISA. That Resolution provides:
How can this resolution-- the purpose of which was to empower the President to use military force in response to September 11-- be seen as a statutory execption to FISA? As others have written, the the Supreme Court drew a similar link to the AUMF in finding that the President could detainee individuals captured in the "war on terrorism," despite the existence of a prior statutory prohibtion. In Hamdi v. Rumsfeld (pdf), Justice O'Connor wrote:
Thus, here seems to be the argument--
1) The Non-Detention Act prohibited the detention of Americans "except pursuant to an Act of Congress."
2) In Hamdi, the Supreme Court ruled that the AUMF constituted that "Act of Congress" for purposes of the exception to the Non-Detention Act.
3) Thus, the AUMF constitutes a similar exception to FISA.
This argument has serious flaws:
First, I am having great difficulty finding an explicit provision in FISA that provides for a statutory exception similar to that found in the Non-Detention Act.
Second, it seems reasonable that the detention of persons captured in Afghanistan, like Hamdi, would be "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use. " But does it make any sense that the surveillance of American nationals in the United States would fall into that category? Is it reasonable to think that Congress even remotely intended the AUMF to have such far-reaching scope? I cannot imagine so.
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