What did the law actually authorize: problems with lack of specificity in statutes
December 20, 2005
'01 Resolution Is Central to '05 Controversy
By DAVID JOHNSTON and LINDA GREENHOUSE
WASHINGTON, Dec. 19 - At the heart of the debate over the legality of the program to eavesdrop on the international communications of American citizens without a court order is a Congressional resolution passed a week after the Sept. 11, 2001, hijackings that authorized the president to use force against those responsible for the attacks.
President Bush cited the resolution, the Authorization for the Use of Military Force, on Monday at his news conference. So did Attorney General Alberto R. Gonzales, who in a session with reporters said the Congressional measure, in addition to the president's inherent power as commander in chief, gave the government the power "to engage in this kind of signals intelligence."
The resolution itself is a single sentence, adopted unanimously by the Senate and with only one dissenting vote in the House of Representatives. It provides the president with sweeping but vaguely defined authority "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."
The resolution makes no mention of surveillance activity. Nor does it specify what is supposed to happen when American citizens, not themselves suspected of violating any law, come to the government's attention through actions taken under the resolution's terms.
"Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror - including myself who voted for it - that this was an authorization to allow a wiretapping against the law of the United States," Senator Russell D. Feingold, Democrat of Wisconsin, said in an interview on the "Today" show Monday.
The precise limits on how much authority presidents may wield in a crisis has never been settled with absolute clarity, despite occasions when courts have served as referees in a contest of wills between the executive branch and Congress. This particular dispute is highly likely to remain in the political realm, because it is difficult to imagine how a challenge to the monitoring program could make its way into federal court. Any challenge would have to be brought by a person who had been a subject of the secret monitoring.
At his news conference on Monday, Mr. Bush was unapologetic, declaring that he would continue the electronic monitoring program as long as necessary.
The government's legal rationale for relying on the 2001 resolution is contained in classified legal opinions, but the thinking was outlined by Mr. Gonzales on Monday at his news conference. He referred to the Supreme Court's 2004 decision in the case of Yaser Esam Hamdi, an American citizen who challenged his detention as an enemy combatant.
The government's primary argument in the case was that the president's inherent authority as commander in chief obviated the need for any authorization by Congress. As an alternative argument, the government maintained that the resolution provided all the necessary authority, despite its omission of any reference to detention.
Justice Sandra Day O'Connor agreed, in a plurality opinion she wrote for three other members of the court, Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer. "Congress has in fact authorized Hamdi's detention" through the use-of-force resolution, Justice O'Connor said. Justice Clarence Thomas agreed in a separate opinion that provided a fifth vote for the theory.
But the O'Connor opinion was fairly nuanced, addressed only to what it called the "limited category" of individuals who fought with the Taliban against the United States in Afghanistan. And four other justices rejected the notion that the resolution could be read to authorize detention of an American citizen.
Justices David H. Souter and Ruth Bader Ginsburg said the resolution should be applied only in the context in which it was adopted, the use of military force. "Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power," the two justices said.
Justices Antonin Scalia and John Paul Stevens, in another separate opinion, also read the resolution narrowly, as not authorizing detention.
Prof. Peter Raven-Hansen, an authority on national security law at George Washington University Law School, said Monday that previous Congressional resolutions on the use of force had focused on powers to be exercised by the president on the battlefield or in close conjunction with military action.
"They are not an authorization for the homeland where law enforcement agencies are available and the courts are open to permit the surveillance of Americans that the president might think necessary," Professor Raven-Hansen said in an interview.
In addition, he said, the monitoring operation conflicted with provisions of the Foreign Intelligence Surveillance Act, which allows surveillance of suspected terrorists in the United States for three days without prior approval from a special court, as long as the approval is obtained later. "This completely transcends these statutory limits," he said.
Attorney General Gonzales, discussing the Foreign Intelligence Surveillance Act at his news conference, said the law applied "unless otherwise authorized by statute or by Congress." The use-of-force resolution, he continued, "constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."
Asked at the news conference why the administration had not sought explicit legislative authorization through an amendment to the foreign intelligence law, he replied that "we were advised that that would be difficult, if not impossible."
* Copyright 2005The New York Times Company
'01 Resolution Is Central to '05 Controversy
By DAVID JOHNSTON and LINDA GREENHOUSE
WASHINGTON, Dec. 19 - At the heart of the debate over the legality of the program to eavesdrop on the international communications of American citizens without a court order is a Congressional resolution passed a week after the Sept. 11, 2001, hijackings that authorized the president to use force against those responsible for the attacks.
President Bush cited the resolution, the Authorization for the Use of Military Force, on Monday at his news conference. So did Attorney General Alberto R. Gonzales, who in a session with reporters said the Congressional measure, in addition to the president's inherent power as commander in chief, gave the government the power "to engage in this kind of signals intelligence."
The resolution itself is a single sentence, adopted unanimously by the Senate and with only one dissenting vote in the House of Representatives. It provides the president with sweeping but vaguely defined authority "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."
The resolution makes no mention of surveillance activity. Nor does it specify what is supposed to happen when American citizens, not themselves suspected of violating any law, come to the government's attention through actions taken under the resolution's terms.
"Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror - including myself who voted for it - that this was an authorization to allow a wiretapping against the law of the United States," Senator Russell D. Feingold, Democrat of Wisconsin, said in an interview on the "Today" show Monday.
The precise limits on how much authority presidents may wield in a crisis has never been settled with absolute clarity, despite occasions when courts have served as referees in a contest of wills between the executive branch and Congress. This particular dispute is highly likely to remain in the political realm, because it is difficult to imagine how a challenge to the monitoring program could make its way into federal court. Any challenge would have to be brought by a person who had been a subject of the secret monitoring.
At his news conference on Monday, Mr. Bush was unapologetic, declaring that he would continue the electronic monitoring program as long as necessary.
The government's legal rationale for relying on the 2001 resolution is contained in classified legal opinions, but the thinking was outlined by Mr. Gonzales on Monday at his news conference. He referred to the Supreme Court's 2004 decision in the case of Yaser Esam Hamdi, an American citizen who challenged his detention as an enemy combatant.
The government's primary argument in the case was that the president's inherent authority as commander in chief obviated the need for any authorization by Congress. As an alternative argument, the government maintained that the resolution provided all the necessary authority, despite its omission of any reference to detention.
Justice Sandra Day O'Connor agreed, in a plurality opinion she wrote for three other members of the court, Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer. "Congress has in fact authorized Hamdi's detention" through the use-of-force resolution, Justice O'Connor said. Justice Clarence Thomas agreed in a separate opinion that provided a fifth vote for the theory.
But the O'Connor opinion was fairly nuanced, addressed only to what it called the "limited category" of individuals who fought with the Taliban against the United States in Afghanistan. And four other justices rejected the notion that the resolution could be read to authorize detention of an American citizen.
Justices David H. Souter and Ruth Bader Ginsburg said the resolution should be applied only in the context in which it was adopted, the use of military force. "Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power," the two justices said.
Justices Antonin Scalia and John Paul Stevens, in another separate opinion, also read the resolution narrowly, as not authorizing detention.
Prof. Peter Raven-Hansen, an authority on national security law at George Washington University Law School, said Monday that previous Congressional resolutions on the use of force had focused on powers to be exercised by the president on the battlefield or in close conjunction with military action.
"They are not an authorization for the homeland where law enforcement agencies are available and the courts are open to permit the surveillance of Americans that the president might think necessary," Professor Raven-Hansen said in an interview.
In addition, he said, the monitoring operation conflicted with provisions of the Foreign Intelligence Surveillance Act, which allows surveillance of suspected terrorists in the United States for three days without prior approval from a special court, as long as the approval is obtained later. "This completely transcends these statutory limits," he said.
Attorney General Gonzales, discussing the Foreign Intelligence Surveillance Act at his news conference, said the law applied "unless otherwise authorized by statute or by Congress." The use-of-force resolution, he continued, "constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."
Asked at the news conference why the administration had not sought explicit legislative authorization through an amendment to the foreign intelligence law, he replied that "we were advised that that would be difficult, if not impossible."
* Copyright 2005The New York Times Company
posted by Professor Segal | 1:40 PM
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