Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless

Marty Lederman

I've previously argued that it's an insult to members of Congress to suggest that when they authorized military force in Afghanistan and against Al Qaeda, they also (inadvertently) intended to give the President the power to circumvent the carefully established FISA rules that require FISA court approval for interception of communications that are likely to involve U.S. persons.

The problems with the "AUMF-authorized-it" argument, however, are more fundamental than that. The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident[s] of waging war," and both of these Executive actions are such "fundamental incidents" of waging war.

But let's look at the communications at issue here a bit more closely, based on what the Attorney General said at his press briefing yesterday.

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.)

And it's also not too hard to understand why this is just a wee bit distinguishable from the detention of a person fighting against U.S. troops on the Afghan battlefield.

(This is consistent with what we know from the New York Times's original story: "The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.")

This means at least three things:

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.
Posted 2:00 PM by Marty Lederman [link]