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Wednesday, February 8, 2006
Legal Justification II: More on the AUMF
By Dr. Steven Taylor @ 6:19 am

Something else that occurred to me to add to my discussion on the Authorization to Use Military Force: Congress can giveth and the Congress can taketh away.

In other words: there is a certain illogic in slapping down the AUMF on the table and saying “see! You gave us the power to do this, so butt out!” If Congress authorized the power via the AUMF as the Attorney General has argued, then surely, by that logic, the Congress can take that power away, modify or oversee it however they wish. The notion that a vague clause in a resolution that was clearly aimed at action abroad creates some sort of legal fait accompli concerning any specific decision made by the administration under that resolution, especially one that is at least partially focused on domestic actions, is absurd.

As such, it doesn’t even make sense to continue to argue over the AUMF. Even if one accepts the argument that that piece of congressional actions could be construed as authorization, there is nothing that should stop Congress from clarifying what they meant.

From there the administration only has the “inherent Article II powers” argument to back up the assertion that everything is fine with the program.


  1. Yes.

    To the extent that the issue concerns a dispute over congressional intent, the logical thing for Congress to do is *clarify its intent*. Sadly, that would require taking an actual stand on the merits of the intercept program, and Congress would apparently rather grandstand.

    I wonder if it would be worth calling my representatives to encourage them to pass a clarifying resolution? I almost don’t care whether they concur with the administration’s interpretation of the AUMF or reject it — just *settle* it so we can get back to more important issues.

    Comment by Kyle Haight — Wednesday, February 8, 2006 @ 11:19 am

  2. You are correct-the easiest route here would be for Congress to overtly clarify their position.

    Of course, part of the oversight issue is figuring out what it is that they would be clarifying about, so to speak.

    Comment by Dr. Steven Taylor — Wednesday, February 8, 2006 @ 11:44 am

  3. One small problem with the idea that Congress can take away or modify authority that it granted on 9/18/01: The president can veto any “clarification” passed by Congress.

    I thought at the time, and I still think, that the brief and expansive language of the AUMF was a shameful (and probably unconstitutional) abdication of congressional authority. That said, I don’t read this abdication of authority to grant the executive a right to undertake domestic surveillance outside of existing FISA authority.

    However, if former Sen. Daschle is not correct that the executive asked for, and Democrats refused to grant, explicit domestic authority in the AUMF, then I would have to agree that the AUMF is not clearly circumscribed, and the administration may not be as wrong (legally, that is) as I would like to believe.

    Comment by Matthew — Wednesday, February 8, 2006 @ 12:19 pm

  4. Matthew,

    True on the veto point.

    and even true on the legality issue vis-a-vis the AUMF. Of course, something can be legally ambiguous and be wrong. The legal ambiguity is part of why I don’t subscribe to the notion that we are in a constitutional crisis. I think that remains to be seen. Still, it behooves congress to seek better clarification of the situation than they have done to date.

    Comment by Dr. Steven Taylor — Wednesday, February 8, 2006 @ 1:05 pm

  5. It’s a constitutional crisis. A Big Time constitutional crisis. And it did not start the day someone had the good sense to leak the FISA violations…

    Comment by Matthew — Wednesday, February 8, 2006 @ 2:36 pm

  6. […] y 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 typo) th […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Legal Justification IV: FISA — Friday, February 10, 2006 @ 7:19 pm

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