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Two Questionable Arguments, Part II

In discussing the present Bush wiretapping scandal, Marty Lederman and Prof. Kerr make one curious assertion. One of the Bush administration's arguments is that the Foreign Intelligence Surveillance Act doesn't apply because Congress authorized the President through the Authorization for Use of Military Force passed after 9/11, thus placing any wiretapping within the "except as authorized by statute" language of 50 U.S.C. 1809. In his rather detailed discussion, Prof. Kerr says in passing:

Note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations.

Lederman takes the argument even further:

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

(emphasis mine) Will Baude calls this argument savvy. "If the President and his attorney general are correct that the AUMF and Article II provide an implied repeal of other pesky procedural laws where national security demands, it is hard to imagine why they need the Patriot Act renewed at all--presumably the AUMF already implicitly does everything they need it to." Yet arguments that "If X did Y, he had no reason to do Z" are particularly pernicious: the fact that no reason springs immediately to mind does not mean no reason exists.

(I agree that the Article II assertion is a bit rich, but it is also to be expected. Every constitutional actor expresses their authority to its most colorable limits, and backs off only when pushed. That's checks and balances, and I don't think we need take the argument too seriously.)

The idea that AUMF under the President's argument rendered the Patriot Act unnecessary rests on an unspoken--and I'd wager unrealized--assumption. AUMF by its terms applies only to "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. . . ." Hence, even if one credits the President's argument, the Patriot Act would be necessary with regards to against any terrorist group not allied with Al Quaeda, or even one that allied with them after September 11. The Patriot Act would apply to Hamas even if it later joined with Bin Laden, or a terrorist group with different motives for attacking the US (e.g. the IRA, the Tamil Tigers). AUMF would not, and thus presumably would not override FISA.

Both authorizations thus seem like sensible executive policy: ask immediately for a limited authorization on force that can be passed quickly , then ask Congress to pass more wide-ranging structural change at a later date. Kerr, Will, and Lederman implicitly assume that the President sought authorization for, and Congress only intended the Patriot Act to apply to, terrorist organizations that perpetrated the 9/11 attacks. Are those the only terrorists in the world?


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I remember at the beginning of 1L year when Prof. Dorf predicted that by Thanksgiving we'd be "thinking like lawyers" so much that we'd be sick of all non-lawyers and they'd be sick of us. Largely, I haven't found this to be the case (I can't speak for the non-lawyers around me, of course), but this is one instance where it holds: to my mind, there is no 'gotcha' contradiction in the statements of Bush and Gonzales: it's just alternative pleading. We've done it in moot court brief dozens of times - the Constitution is on my side, but if it's not, a statute is on my side, but if it's not, policy is on my side, etc. I admit that this concept isn't one that's going to win tons of points with folks in the Beltway or the heartland. From a legal perspective, however, I am baffled by the fact that intelligent and educated people think there is some enormous contradiction in the administration's position. Gotcha? Hardly.
John: You have to remember that Baude wants the President to present a "theory of legal interpretation (other than national security purposivism) at work here" in his press conferences. You and I see the back and forth for what it is.

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