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Tuesday, February 7, 2006
Legal Justification: The AUMF
By Dr. Steven Taylor @ 12:12 pm

Here’s the key passage from the Authorization for Use of Military Force of Sept. 18, 2001

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration has argued that this, along with the inherent powers granted the President in Article II, legally authorize the current controversial surveillance program.

Attorney General Gonzales restated this argument yesterday, including in the following response to Senator Leahy:

GONZALES: Sir, there is no specific language, but neither is there specific language to detain American citizens. And the Supreme Court said that the words “all necessary and appropriate force” means all activities fundamentally incident to waging war.

The question becomes, what that means.

Clearly there is a legal line in that statement somewhere. The administration chooses to assume that it allows the curent surveillance program. However, this strikes me as an overly broad interpretation. What constitutes “all necessasry and appropriate force”? How far can the administration go if it believes it is doing the “right thing”?

The current argument by the administration is that the AUMF allows for the abrogation, in some circumstances, of the Fourth Amendment. If that is true, what else can be abrograted?

Could the administration authorize the arrest of all Arab-Americans to fight the WoT? Could the President close the border to all travelers from the Middle East? Could he order searches of the homes of anyone who has traveled to Pakistan in the last 5 years? Could he shut down the blogs of anyone who criticized his program? Where’s the line and who gets to decide what it is?

It seems to me that the only way to protect against overreach in terms of power by the executive branch is to insist on adequate checks and balances.

What, pray tell, is the specific objection to that position?

I will get to the Article II issue later.

12 Comments »

  1. “Could the administration authorize the arrest of all Arab-Americans to fight the WoT?

    For what it’s worth, Korematsu was never overturned.

    Comment by KipEsquire — Tuesday, February 7, 2006 @ 2:24 pm

  2. Could the Adminstration order no Congressional briefings for fear of information getting out? Could they detain reporters they fear might discover something?

    The open endedness of this position is worrisome. This is more than a slippery slope, it is the adminstartion saying, don’t worry, we will decide what is need to know and what is not.

    Comment by SoloD — Tuesday, February 7, 2006 @ 2:33 pm

  3. Kip,

    True-although I suppose that there hasn’t been an opportunity to test it again in the courts-and hopefully there never will be.

    Jay,

    Exactly.

    Comment by Dr. Steven Taylor — Tuesday, February 7, 2006 @ 2:35 pm

  4. I keep saying, the American people should have insisted on a real declaration of war, not a tepid discussion followed by a hazy “authorization to use force.” The Article II “argument” is weak on the face of it, since there’s no ambiguity about the shared powers of Congress and the President for preparing, declaring, and prosecuting war.

    Comment by Kingdaddy — Tuesday, February 7, 2006 @ 3:30 pm

  5. hi doc;

    i have just answered ALL of your latest questions at my blog.

    thanks for taking the time to make such a cogent argument aginst what bush has done. too bad feingold and leahy and durbin and others have NOT made such a case.

    not that it would change things, materially. it would just elecate the debate.

    as for who wins this debate - we shall soon see … the SIC and the SCOTUS will soon weigh in, i believe.

    all the best!

    Comment by reliapundit — Tuesday, February 7, 2006 @ 5:20 pm

  6. It is clear what Bush needs to do-dissolve Congress immediately. That will solve this little problem.

    Comment by Rigo — Tuesday, February 7, 2006 @ 8:03 pm

  7. I’m going to play the devil’s advocate here and note that Abe Lincoln - sainted Abe Lincoln - suspended Habeus Corpus during the Civil War - a far greater “excess” in my estimation, and yet he’s been given a pass.

    The Slippery Slope argument is as much of a logical fallacy as the false dichotomy.

    I am somewhat ambivalent about the program and the resulting firestorm (as I am about many things these days, apparently). What is clear from what I’ve read is that the administration didn’t just decide to do this willy-nilly. They considered the constitutional questions adn came to a different conclusion than you or I. Until this thing comes before the supreme court (assuming someone else doesn’t hear this sort of case), we have no real way of knowing whether it was “legal” in the technical sense of the word.

    I’m much more concerned about the president’s recent budget - which contains much more pressing concerns - that will likely get buried under “wiretap-gate” or whatever ridiculous moniker they throw on this tempest in a teapot.

    Comment by bryan — Tuesday, February 7, 2006 @ 9:42 pm

  8. Just because Lincoln did something doesn’t make it right or good, sainted status or not. However, I will note, there was at least a Constitution basis for the notion of suspending habeas writes. Article I, Section 9 states “Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

    And, I would note, Lincoln had a shooting war on US soil.

    True the slippery slope is a logical fallacy, yet in this case we do know that once in our history the security concerns of a President in a time of war led to the rounding up of innocent US citizens into camps because they belonged to the same racial class as one of our enemies, and one doesn’t have to go back to the Civil War to conjure that one.

    Further, I have studied enough comparative politics to know that executives are prone to take as much power as they can get away with-which is the reason that that Founding Father installed checks and balances.

    I would also note that I bring up the slippery slope in question not to argue that that I think we are going that direction, per se, but to illustrate that there is a line in the sand somewhere where the AUMF stops authorizing actions. Those whop argue that it authorizing the current wiretapping program need to acknowledge that their logic over what powers the AUMF give the president have a limit and that we need to talk about what those are, not just slap out the AUMF and say “see!”-which is what the administration has essentially done.

    And yes: our fiscal policies are quite concerning.

    Comment by Dr. Steven Taylor — Wednesday, February 8, 2006 @ 6:08 am

  9. Just because Lincoln did something doesn’t make it right or good, sainted status or not.

    Agreed. I bring it up to point out that this isn’t the first time we’ve faced these types of situations.

    One thing I haven’t heard addressed - perhaps you know - is whether these “wiretaps” are retroactively approved, i.e., do they go back after the fact and get some sort of approval?

    I should also say I’m in agreement with most of your general points re: executive power, checks and balances, etc. What I’m still uncertain about is whether this particular case is something that rises to the level of hysteria it’s getting, slippery slope or no.

    Sept. 11 was a shooting war on our soil, IMHO.

    I”ll let the michelle malkin’s of the world debate the internment issue. I think it was wrong then, and would be impracticable now.

    Comment by bryan — Wednesday, February 8, 2006 @ 12:35 pm

  10. Bryan,

    There is no retroactive approval under the program in question. FISA allows for such, but according to General Hayden and AG Gonzalez, FISA as currently constituted is inadequate for the surveillance in question.

    It isn’t that I have a problem with the concept, I simply have a problem with the way the program has developed.

    Comment by Dr. Steven Taylor — Wednesday, February 8, 2006 @ 1:03 pm

  11. […] etap controversy and the legal and constitutional argument that surround it. Previously: Part I and Part II). There are many things in the political realm that I find puzzling. These days one of th […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Legal Justifications III: The Constitution — Thursday, February 9, 2006 @ 1:57 pm

  12. […] FISA
    By Dr. Steven Taylor @ 7:12 pm

    (Part of a series of sorts: Previously: Part I, Part II, and Part III). This afternoon I was suffering surfing (although I think that was a Freudian […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Legal Justification IV: FISA — Friday, February 10, 2006 @ 7:17 pm

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