Tuesday, December 20, 2005
Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless
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.
"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."
When Congress used these words it is obvious that they did not know exactly who was responsible. Even today we do not know the full extent of the organizational chart of the forces loosely referred to as "Al Qaeda". Just looking at the words you quote indicates that the first job assigned to the President by Congress was to find out just exactly who were the nations, organizations, or persons responsible. In order to do that, the President had to gather intelligence.
If you don't know who you are looking for, then you will necessarily gather some information about people who are not involved. The only way to avoid that is to know in advance who is not involved, which would then be the same as knowing who is involved.
So it seems to me that the President did exactly what Congress asked him to do. He used signals intelligence to attempt to determine who was responsible. There is no other feasible mechanism for accomplishing the mission assigned to him. Yes he may overshoot the target, but the only way to avoid that is to do absolutely nothing at all.
Accepting Gonzales's rationale for the moment using those broadly framed standards, shouldn't the administration be rounding up those people in America on the phone supporting Al Qaeda?
The administration knows, apparently, who they are. The administration's position is that Art II and AUMF (pick one) given them the authority to take "war-time" actions against the enemy and enemy supporters.
Why then is this president locking up these people . . . and protecting the rest of us?
Marty really doesn't like Hamdi. Really doesn't like it.
Here's the question Hamdi addressed:
"The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “ ‘part of or supporting forces hostile to the United States or coalition partners’ ” in Afghanistan and who “ ‘engaged in an armed conflict against the United States’ ” there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized."
Yikes. Look at that: "part of or supporting forces hostile to"
Yes, the "carefully formulated" and "broad" language comes from Hamdi!
SOC upheld detention of citizens *on the battlefield* who were, in the SG's words “‘part of or supporting forces hostile to the United States or coalition partners’” in Afghanistan *and who* “‘engaged in an armed conflict against the United States’” in Afghanistan.
I'd be willing to wager a pretty penny that *none* of the hundreds or thousands of U.S. persons whose communications have been intercepted have engaged in armed conflict against the U.S. in Afghanistan -- and that the vast, vast majority of the calls do not involve *any* party who has done so.
That completely neglects to address why the President circumvented the FISA court.
If it makes sense to surveil people, given your reasoning, then why not take it to the FISA court (either beforehand or within 72 hours)?
Why evade the legal requirement if it's such a meritworthy thing he was doing? Because he knew that the FISA court would not approve it?
Doesn't that give you a little pause?
Because courts and warrants are part of the criminal justice system, and the President wasn't told by Congress to arrest someone, he was told to use military force. Consider Mohammed Atef. He was head of the terrorist group in Kandahar that Jose Padilla was training in from June to Nov 2001. On Nov 16 US forces (presumably from signals intelligence) conducted an airstrike that killed him. That certainly falls within the scope of using military force against one of the people responsible for 9/11.
Now you are a US signals intelligence officer trying to locate Atef. You know that he may be called by a list of people some of whom may be in the US. So now you are saying that the military should go to a Court and get and order that allows them to locate and kill someone. Well, that's how war works, but its not how courts work. Its not just that I think it is unconstitutional for the Courts to be placed in any supervisory role over the normal internal operations of the military at war. Its also that I don't think the courts should be formally involved in a process that kills people summarily and without process. There should be a boundary between the judicial process and the military conduct of war or both sides suffer.
Article III provides absolutely no authority for the Courts to supervise the tactics, strategy, intelligence, logistics, planning, or conduct of military operations. That is exclusively a Presidential authority. Congress cannot give the Courts authority over military intelligence gathering, targeting, or other operational procedures.
There is one point. Any intercept that is not obtained with a warrant cannot be used to bring criminal charges against anyone in the US who is involved with Al Qaeda. It is silly to assume that the primary purpose of the President's intelligence gathering was directed against anyone in the US. After all, nobody in the US has been blown up by an airstrike recently. It is more reasonable to assume that the military is using whatever intelligence it gathers from international calls to find military targets overseas.
Hey, if anyone knows Osama's number and wants to call him up and congratulate him, give him support, or even promise to send him money, I am all for it. I don't think he should be afraid of any legal consequences. I will even pay for the call out of my own pocket. But will you please wait a few minutes before you dial the number. We have to get a couple of F-16's in the right position.
Marty, can you explain what purpose the first half of the verbal formulation in Hamdi serves there? As I understand your view, it doesn't serve any at all.
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