Balkinization  

Friday, April 07, 2006

Reductio Ad Dictatorem

JB

Attorney General Gonzales' admitted on Thursday that President Bush believed that he could legally spy on American citizens' phone calls and e-mails occurring solely within the United States. Previously the Administration had argued that it had authority to intercept and listen to conversations coming from overseas or going overseas without a warrant and without abiding by the Foreign Intelligence Surveillance Act (FISA). It asserted that the President had inherent authority to intercept intelligence coming from the nation's enemies and that the President was also authorized to do so by the September 18th, 2001 Authorization for the Use of Military Force (AUMF) against Al-Qaeda and other organizations which participated in the 9-11 attacks. Thus, the Administration argued, either the AUMF superseded FISA's requirements prohibiting warrantless surveillance of U.S. citizens, or else FISA was unconstitutional to the extent that it conflicted with the President's inherent powers as commander-in-chief.

Gonzales' latest admission-- that the President can also engage in purely domestic spying without a warrant-- might seem like a pretty significant grab of power, far beyond what the President said he could do before. But if you understand the Administration's theory of its own power, Gonzales' statement should not be at all surprising. The distinction between domestic communications and international communications is irrelevant to the theory. The latest revelation shows that the President's theory all along has been radical, unreasonable, and dangerous.

The President's view is that because he is fighting a war against terrorist organizations, any persons that he believes are allied with those organizations against whom country is fighting should be treated according to the rules that apply to war, and not to the rules that apply to the U.S. citizens generally (including but not limited to the protections of the Bill of Rights). According to the President, Congress has authorized intelligence gathering against enemy soldiers, which includes electronic surveillance, and even if Congress did not authorize it, as Commander-in-Chief he has authority to engage in such surveillance as a reasonable incident of prosecuting the war against Al-Qaeda.

Under this theory, the distinction between international calls and calls that are purely domestic is spurious. Our enemies are our enemies wherever they may be located, and their intelligence is enemy intelligence, whether or not they happen to be located overseas or within the United States. Hence if the President has power to wiretap conversations going overseas or coming from overseas, he has the same power to wiretap conversations within the United States.

The problem is not that Administration has suddenly changed its theory of its own power and is now making unreasonable assertions. Rather, the problem is that the President's argument about his own power has always been unreasonable; the latest admissions simply show us where this argument leads.

The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.

The President argues that the AUMF has authorized him to do this, but the AUMF does not say that the President can disregard laws like FISA specifically designed to protect U.S. citizens (and persons living within the U.S.) from executive overreach. FISA is a far more specific statutory scheme than the AUMF, and we should not assume without a far clearer statement that Congress meant to give the President a blank check to elmiminate laws that restrain executive overreaching and protect the civil liberites of Americans. Nor can the AUMF permit the President to violate constitutional guarantees of Due Process or other constitutional protections.

The President's other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President's wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.

Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.

This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.

Attorney General Gonzales' latest admission should hardly surprise us once we understand how much power the President actually thinks he has. Given that we will probably never know what the President has been doing in our name, we can only hope that he has not actually tried to exercise all the power he (wrongfully) thinks he possesses.


Comments:

And let's not forget that then-AG Ashcroft condemned the Administration's political critics in Senate testimony in 2001 (on Pearl Harbor Day, no less), saying that:

"To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve," Ashcroft told the Senate Judiciary Committee. "They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

What happens if the President declares that these critics are, in fact, enemy combatants by dint of their "aid" to terrorists and the "ammunition" they give to America's enemies? On the underlying theory claimed to justify the Padilla detention.....Nothing.

(From a post I just put up at CardCarryingMember, citing your post.)
 

I hadn't noticed that Professor Balkin had a theory that distinguished between Hamdi and Padilla, so this post seems like the usual disingenuousness.
 

What happens if the President declares that these critics are, in fact, enemy combatants by dint of their "aid" to terrorists and the "ammunition" they give to America's enemies?

The present administration, in its 2004 campaign, more or less claimed that the single biggest national-security threat facing America wasn't loose nukes, or Wahabi-style fundamentalism, or China, or global warming, or the collapse of the Musharaf government, but the prospect of a Democratic victory at the polls.
 

... no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with [enemies] ... To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law. ...

People may find the above pretty shocking development but hopefully things will correct sooner or later. This is of course assuming that the constitutional system of checks and balances is still operational in this country.

It's important to realize that these presidential assertions are not that unusual, on the operational level security agencies in this country (primarily FBI, most recently also DOD and DHS) have always assumed they had those very powers. Namely to assert that the person is associated with some kind of enemy and based on that assertion the right to neutralize their target. (job, house, family, reputation, etc.). As in Bush's claims that assertion doesn't have to be proven to anyone. Old Goldwaterian "extremism in the defense of liberty is no vice .. moderation in the pursuit of justice is no virtue!". Exactly the same as "extremism in the defense of Islam is no vice".

MLK is the most known example of that attitude from the era when those practices were widespread, but even today cases surface from time to time. One particularly egregious was that of S. Hatfill whom the FBI suspected of involvement in anthrax attack.

It is likely that many such cases are never revealed to the public especially these days.
 

the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.

Surely this is also the central outrage in the Padilla case, which I am surprised has gone unmentioned both in this post and on this blog since Monday's Supreme Court punt.
 

Sorry. Coffee hasn't fully taken effect... I somehow skipped the Padilla paragraph.

Still, I'd welcome a post on the Supreme Court (non)-decision.
 

If you don't think you have the power, even if you do, you don't.

If you think you have the power, even if you don't, you do.

http://takeitpersonally.blogspot.com/
 

Frankly, all of this has been evident since day 1 of the hysterical response to 9/11. I refer you to the case of Grandpa Munster.

From a legal standpoint, it's all very simple: the full force of the law, including wiretapping, may be used against terrorists. But... who is a terrorist?

No one would claim that Grandpa Munster, then aged 91, was a terrorist. He happened to share a web server that also hosted an Irish radio station that broadcasts material about the IRA. At that time, the IRA was not designated a terrorist organization, even by the British government. Pre-Bush, no one would have imagined designating them an international terrorist organization at all. The same basic story goes for the other radio show, Our Americas.

Somebody claiming to be a federal agent called up and said that an Executive Order permitted the seizure of assets of the internet provider simply for hosting these shows! The net effect was to put all three out of business.

Now, assuming this call did come from a federal officer, anyone with the slightest understanding of law should see the problem: where is the due process? Who decided that Grandpa Munster was a threat to the security of the United States of America? Having suffered demonstrable economic damage, what recourse do these people have?

If the call did not come from a federal officer, why did not the FBI investigate the serious crime of impersonating an officer?

Grandpa said it correctly: "I lived through the McCarthy period. It will get worse."

And so it has. And so it will. Until people start seeing that we started down the slope toward dictatorship 4 years and six months ago. We have marched past denial of habeas corpus, past denial of the right not to be held except on charges, and past "legal torture." We are now halfway to becoming a nightmare state and marching, zombie-like, ever down.
 

Let's see what happens to Harry Taylor.
Gitmo, maybe?
 

the point that has not yet sunk into the popular consciousness of the Bush power grab: this is not just about spying.

This is about never again being certain what law the administration might or might not feel itself constrained to follow from one day to the next.

Once the President reserves for himself the power to ignore any law that he personally decides isn't compatible with his office, who can possibly say what law we might still be able to rely on? Or what rights, if any, we still have, that the administration does not feel free to ignore?
 

Sen. Feinstein directed a series of questions to AG Gonzales on the same topics you discuss here, February 6 in the Senate Judiciary Committee's first hearing.
ex-Speaker Daschle wrote a December 23, 2005 article in the WaPost describing language about granting domestic warrantless tap permission which the administration requested but which the Senate refused in writing the AUMF; and ex-Sen. Daschle in more muted tones discussed the same topic in a television interview in a panel of congressional conservatives on February 12, 2006 on MTP
There was an interesting moment touching obliquely on all these matters in the Supreme Court March 28, 2006 when Justice Kennedy was trying to elicit SG Clement's defense of three weak places in the structure of the detainee commissions. The SG was evading, and AJ Breyer interrupted with a paraphrase of the three telltale flaws. I will close this post with the verbatim cite from the official transcript. But let me say I think SCOTUS is going to resolve some of the excesses which have worried the legal community over the past four years, when SCOTUS finally issues its opinion in the Hamdan matter. At least we may hope SCOTUS will avail itself of the occasion to place in the record its concerns about protracted extra-legal tactics by the executive.
Tuesday March 28, 2006 questioning of SG Clement in re Hamdan 05-184
[BEGIN BLOCK QUOTE]
JUSTICE KENNEDY: Mr. Clement, I, for one, have lost track of your time. I'm interested in your arguments on the -- on the legitimacy and the regularity of these commissions.
GENERAL CLEMENT: And if I could talk to various aspects of that, I'm happy --
JUSTICE BREYER: Can I put the --
GENERAL CLEMENT: -- to do so.
JUSTICE BREYER: -- that issue in -- don't --ignore my question, which is the same as Justice Kennedy's, if it doesn't help. I'm trying to focus this. And, in my mind, I take their argument as saying, "Look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime, because that doesn't fall under international law. And, three, it's not a war crime tribunal or commission, because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it, it's not in any of those in other respects, like past history. And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission.[END BLOCK QUOTE]
 

But remember, it's the terrorists who hate freedom.

Seriously, I'm glad this meme is getting picked up and spread around. Right now, the only factor that limits the president's ability to kill, detain, or search Americans is the level of public outcry the president is willing to sustain. (Remember, avoiding public outcry was the justification given for the Administration's choice not to engage in purely domestic wiretapping under the "terrorist surveillance program.")
 

Gangsta-zales
 

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