Politician's Make Law Confusing

This whole topic of the NSA spying keeps getting more confusing.

The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.

Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.

First off, why is this contention only coming out now? Why haven't we heard this from the ranking democrats if it's true. I guess I need confirmation from someone other than Daschle.

Then there is the question of, if you didn't intend those powers to be allowed, and it's fairly clear that the use of spying during a time of war is completely within the presidential branch's constitutional powers, why doesn't the AUMF itself have wording specifying that it's not allowed? I'm going to guess that they knew it would be unconstitutional, and thus didn't actually put in the words. The article even has testimony on the president's wartime power for espionage.

Yesterday's letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created an exception to FISA's warrant requirement by authorizing President Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.

But Moschella argued yesterday that espionage is "a fundamental incident to the use of military force" and that its absence from the resolution "cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy." Such eavesdropping, he wrote, necessarily included conversations in which one party is in the United States.

Funny that is the first time I've seen this in the MSM. Hit the blogs several days ago. Maybe I just don't look in all the right places.

"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.

Sorry, but go read the text. If Daschle intended to disallow such abilities, it is not outlined in the law. Part of the reason why I originally stated surprise that it was such a blank check. Also, just because the law doesn't specifically allow espionage in the country, doesn't mean that it is disallowed by the law or the constitution. Don't forget that FISA does allow this during statutory allowance, which several legal blogs point out the AUMF is such an allowance as presently viewed by the SCOTUS. (That's the Hamdi vs. Rumsfeld thing.)

Capt. Ed has an entry on Daschle's contentions.

Separately, the DailyKos goes into an attempt to debunk the topic of the searches by the Clinton/Carter administrations. Once you read it, go back to the QandO piece to see a better analysis of who/what is defined as a "foreign power" and where that definition actually is. Kos and those that he quotes, in my opinion, look a bit sloppy on this one.

Please note, I see this having two separate parts, first is it legal, second, is it right?

Legal from what I've gleaned from all of the writers appears to be leaning toward the yes side, but not an absolute yes. Most of the commentators, that have some credibility, have basically come out and said that it looks like a yes, but that there really isn't any real case law focused on this topic.

Is it right? I think from what limited information, and note I don't call them facts, that we have, I'd say the administration has shown restraint in application. The problem I see in any of this is that they didn't seek the "after the fact" warrant, which appears allowed by FISA. Personally, I believe that in the present scenario related to terrorism, tapping a terrorist non-citizen's communications is correct. And if the communications come into the US then they are, at a minimum allowed to be heard for security purposes.

I've heard the Ben Franklin quote popping up here again.

"Those who would sacrifice civil liberties for a bit of temporary safety deserve neither liberty nor safety." - Ben Franklin

As far as most of the times this has been used, I don't think he meant civil liberties with no safety. It still comes down to a balance. Personally, I think the Framers of the country had it pretty much completely correct. [but some of the interpretations since then have strayed from the range.]