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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless
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.
Eyes speak the best of the body language.
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Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
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Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
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Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
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Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
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Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
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