Yesterday, the Department of Justice released a 42-page defense of President Bush’s warrantless domestic spying program. It’s full of impressive sounding citations, legal jargon and footnotes. But all of that is just ornamentation for two – and only two – fundamentally unserious legal arguments in defense of the program:
1. The program was authorized by Congress in the September 2001 Authorization for the Use of Military Force (AUMF).
2. As Commander-In-Chief, President Bush has the “inherent authority” to do whatever he wants.
As to the first point, the administration’s argument isn’t even internally consistent. On the one hand the Justice Department is saying the AUMF authorized this program. On the other hand, Attorney General Alberto Gonzales argues that they didn’t ask Congress for the authority because they knew Congress would reject it:
We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.
Legally, it’s impossible for the AUMF to give the President the authority to conduct warrantless domestic wiretapping. Congress has comprehensively regulated all electronic surveillance and federal law designates specific statutes as the “exclusive means by which electronic surveillance…may be conducted.” The AUMF is not one of those statutes. (For legal citation fans it’s at 18 U.S.C. § 2511(2)(f)) Moreover, it specifically contemplates warrantless surveillance “during a time of war” and says “notwithstanding any other law” such surveillance cannot “exceed 15 days.” (50 U.S.C. § 1811) The program has been going on for four years now.
I’ll deal with their second (and last) argument in an upcoming post.