In response to my post on AUMF and FISA, Will Baude provides two things. First, he gives us a wonderfully short paragraph to recap the argument:
The President maintains 1, that his warrantless wiretaps do not violate the Foreign Intelligence Surveillance Act because FISA was implicitly repealed in part by the Authorization for the Use of Military Force, and 2, that it is vital that the PATRIOT Act be renewed.
After that, however, he proceeds to push his argument by parsing some words far too finely. He argues that the President's recent press conference
shows that the PATRIOT Act "is needed to fend off Al-Qaeda and its collaborators, not some other group of terrorists that had nothing to do with 9/11," and thus is wholly redundant if the President believes what he's saying about AUMF. The words in question
These Senators need to explain why they thought the Patriot Act was a vital tool after the Sept. 11 attacks but - but now think it's no longer necessary.
The terrorists want to strike America again. And they hope to inflict even greater damage than they did on Sept. 11.
This is silly for two reasons. First of all, the idea that (a) Congress could not have intended and (b) the President did not (and does not) contemplate the Patriot Act being useful against other terrorist groups, and thus of independent importance from AUMF, is not easily rebutted by the obsessive parsing of a presidential press conference. Suffice it to say that addresses to the White House press corp, calculated to spin well and get good soundbite, are not the stuff from which to divine the actual intentions of political actors when they pushed for a law several years ago. Is it useful to tie the Patriot Act to Al-Qaeda now? Certainly. Was that its exclusive intended ambit? Probably not.
Secondly, it ignores the fact that (as even Marty Lederman noted) there are areas in the Patriot Act that would certainly not be covered by AUMF. Both Baude and Lederman presume that the President was talking about acts covered in the AUMF/FISA relationship, but they give no reason for such exclusion. The interplay between the two statutes involves little more than the issue of wiretapping, while the Patriot Act puts forward a broader regulatory scheme.
But the true "let's parse a press conference like we would a statute" award goes to this argument of Lederman's, again linked to approvingly by Baude:
One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents.
What about the other party to the communication? Here's what the Attorney General said:
"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."
"To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."
"It is tied to communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda."
I don't think it's hard to understand from these carefully phrased formulations that many of the communications in question -- say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is "part of" an organization "supportive of" Al Qaeda -- are between two people, neither of whom is covered under the terms of the AUMF. (Thanks to David Barron for bringing these broad formulations to my attention.)
(emphasis in original) Through this, Baude is trying to prove that "[I]t's not at all clear that the President and his Attorney General share Anthony's belief about the narrow scope of AUMF."
AUMF authorizes the use of force against "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" (emphasis mine) Inconsistency only arises if the organizations "related to" or "supportive of" Al Qaeda (in the Attorney General's speech) were not also organizations that "aided" or "harbored" Al Qaeda prior to September 11, 2001. Is the AG saying that the wiretaps covered groups outside the conjunction of those two sets? True, as Baude says, "it's not clear." But it's not outside the bounds of possibility that the AG used different terms for the same idea.
It's ridiculous to parse a press briefing spun to non-lawyers and reporters, even if given by the Attorney General, and expect it to precisely match the text of a statute. This is a good thing, too: read any statute out loud, and you'll quickly see that using statutory language in a press briefing would make them even more soporific than normal. Does the AG interpret AUMF more broadly than its language would allow? Maybe, but you can't really tell without more information on who was tapped (and how). We don't have that.
Of course, all this is fairly well tangential to Baude's real heartbreak:
It is possible that the administration will eventually decide to reconcile the two positions, but at the moment it is showing no sign of even trying to pretend that there is a theory of legal interpretation (other than national security purposivism) at work here.
I sincerely hope that Baude lives to see a presidency that puts forward a consistent theory of legal interpretation in its press conferences. For this to be a workable strategy in this age of mass media and television, the majority of Americans must become lawyers who worry more about consistency in legal interpretation than the pragmatic "purposivism." Such purposivism is, of course, the natural outgrowth of a polity that regards its own safety more highly than the fine points of intellectual consistency.
(Come to think of it, if it takes that many lawyers maybe I don't hope Baude lives to see it.)
That's not to say that a consistent theory isn't discernable from the administration's actions, but that looking for it during a glorified photo op is probably a fool's errand.
: Those who harbored or aided Al Qaeda after September 11, 2001 would not seem subject to AUMF. This, of course, immediately points out one more absurdity with Baude's claim that Bush's use of "the terrorists" in his press conference must mean individuals to whom AUMF applies. Baude's assertion makes logical sense only if you are willing to think "the terrorists" means Al Qaeda to the exclusion of any groups that might have allied themselves with Bin Laden in the last few years. I humbly submit that anyone who thinks press conferences should be parsed that closely overestimates the precision of political speechwriting.