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Bush and the AUMF: Creeping Power
Posted by: Jon Henke on Sunday, January 08, 2006

I must both agree and disagree with Dale's post on the implications of the AUMF. On the one hand, I absolutely agree that Congress has abdicated its oversight responsibilities and "through the [AUMF], given the Bush Administration, and, really, any administration that follows, too much of a wartime mandate." I've written previously on the need to bring back Declarations of War, but this is as good a time as any to remind everybody that the quasi-declarations of War that have evolved — and have been codified by the War Powers Act — are granting the Executive Branch too much authority to wage half-hearted wars of only marginal importance to vital US interests, but not enough authority to wage decisive wars. Meanwhile, as Dale notes, Congress gets to avoid making hard choices, and instead gets to criticize "the president's conduct from the side."

On the other hand, I'd disagree that the AUMF is a de facto Declaration of War, implicitly giving the President War Powers. This legal view has been central to the Bush administration's justification of almost every contested issue in recent times — e.g., the detention and surveillance issues — and it was a focal point of Dale's recent legal defense in the warrantless domestic surveillance debate. The issue is, to be perfectly fair, a very complicated one.expansions of government power don't tend to simply evaporate when the initial rationale for the extension of power subsides

However, the Congressional Research Service looked into the AUMF qua Declaration of War argument recently, and concluded that the administration had probably crossed a legal bridge too far...
The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration's legal justification "does not seem to be . . . well-grounded," they said.
The CRS is not, of course, a Court and their decision is only a data point, but the research — here's a link to the PDF — is instructive nonetheless. Inter alia, they wrote...
Where congress has passed a declaration of war, 50 U.S.C. 1811 authorizes the attorney general to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a Congressional declaration of war. Indeed, even if the authorization were regarded as a declaration of war, the authority to conduct warrantless electronic surveillance under 50 U.S.C 1811 would only extend to a maximum of 15 days following its passage.
As far as the Hamdi decision — which granted detainment privileges to the President under the AUMF — goes, the Congressional Research Service finds that there is reason to "limit Hamdi to actual military operations on the battlefield as that concept is traditionally understood" and that "it is not clear that collection of intelligence constitutes a use of force." What's more, the Supreme Court "Hamdi plurality cited the Geneva Convention and multiple authorities on the law of war to reach its conclusion", while the Bush administration has "not pointed to any authority similar to those cited by the Hamdi plurality" to support their legal position.

the Bush administration has "not pointed to any authority similar to those cited by the Hamdi plurality" to support their legal position. All things considered, I don't regard the warrantless domesstic surveillance issue quite as open and shut a case as seems to be the case with many people on both sides. Ann Althouse just about sums up my take in this post in which she notes that this issue is "too specialized and complicated" and that even Orin Kerr — an expert — was modest in his analysis and refrained from taking any strong positions. So, yeah, those who claim that this is an open and shut case of [whatever] are probably speaking more out of preference than actual legal knowledge.

And that leaves us back at the normative question: is this a good idea? Or, perhaps a more relevant question at this stage: how far ought we argue that the President's power be extended?

Like Dale, I'm incredibly uncomfortable with a broad, open-ended grant of power such as that which the Bush administration claims flows from the AUMF. I can see some merit in the legal arguments being made in defense of the Bush administration, but I wonder whether the people making those arguments have really thought through the implications. Because expansions of government power don't tend to simply evaporate when the initial rationale for the extension of power subsides.

If we know anything about the nature of government, it is the old bromide that "power corrupts and absolute power corrupts absolutely", even if the power is being extended for "the greater good". As CS Lewis wrote, "those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
 
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On the other hand, I’d disagree that the AUMF is a de facto Declaration of War,
Moot point, since it’s already been ruled as such as has been discussed and linked in these spaces, previously.


 
Written By: Bithead
URL: http://bitheads.blogspot.com
No, it hasn’t. Did you even read what I wrote about that case? Read pages 33-34 of the CRS brief, in which that argument is dispatched.
 
Written By: Jon Henke
URL: http://www.QandO.net
Yes, I saw it and discounted it as flawed.
Do you have any others to offer? Further, the ruling, as I gather it still stands.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/563mevpm.asp

"In a national emergency, who you gonna call?"
by Harvey Mansfield, the William R. Kenan Jr. professor of government at Harvard.

Mansfield makes the argument that "...the American Constitution made the first republic with a strong executive. A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not
to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger."

And, that "Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws. In the current dispute over executive surveillance of possible terrorists, those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped. The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution."

 
Written By: Gary
URL: http://
Coming up on a month later and I have yet to see a specific example of a violation. Lots of if/then conjecture.

I can’t believe the leakers didn’t have any specific knowledge of any, if there are actual violations.

The only reason for not bringing them up is that the program is very effective and there are so far no examples of ’dark motives’ for any of the taps. And/Or they’re just simply no technical violation of the law. That way we can go on and on abstractly about the evil plots of the President.

Secrecy is already shot and I can’t believe that’s the reason none have surfaced.
 
Written By: John
URL: http://
I can’t believe the leakers didn’t have any specific knowledge of any, if there are actual violations.
Oh, but I can, John. You’re looking at it from the assumption that they were actually out to find facts. In reality, all they needed was inuendo, and a lotta smoke.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
My meaning is that if the leakers had anything specific they would have leaked it.
 
Written By: John
URL: http://
Yes, I saw it and discounted it as flawed.
I’d expected nothing more or less from you. You explanation is as thorough as your thought processes and your intellectual independence unquestionable — or, indeed, in evidence for said questioning.
Further, the ruling, as I gather it still stands.
Yeah, well, it was the ruling that the CRS cited in explaining that the AUMF didn’t apply to non-battlefield conditions. You will, I presume, begin gathering arguments as to why the ruling no longer stands.
 
Written By: Jon Henke
URL: http://www.QandO.net
I’d expected nothing more or less from you. You explanation is as thorough as your thought processes and your intellectual independence unquestionable — or, indeed, in evidence for said questioning.
My explanation as is thoughtful and thorough as needs be, since your mind is already made up completely independently of most of the facts and is not about to be changed by mere fact.
Yeah, well, it was the ruling that the CRS cited in explaining that the AUMF didn’t apply to non-battlefield conditions.
Oh, I don’t know .... it seems a reasonably easy task to defeat this one.... but I think I’ll let you do it for me; In a war where the first blow was struck here on American soil not once but three times, and given the poeple whose rights you’re so concerned about the government supposedly violating, were planning attcks here in the US.... perhaps you can explain to us what defines the battlefield.

Both you and the CRS are apparently under the misconception that a battlefield can only occur outside the United States borders.


Sorry, wrong answer.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
My meaning is that if the leakers had anything specific they would have leaked it. Excepted, and agreed to. My response was intended to further your point.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
perhaps you can explain to us what defines the battlefield.
Inter alia, it’s where the soldiers are fighting. The Court you’d previously given so much credit was fairly clear on that point.
 
Written By: Jon Henke
URL: http://www.QandO.net
and you wouldn’t call the attacks a battle?
you wouldn’t suggest that the bombs being placed year and tharted by our people are part of the battle?

The problem with that narrow definition is the people conducting the attacks are not soldiers of a given country... and yet we’re still being attacked.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
JH: "...that the CRS cited..."

Don’t you think that the CRS, a wing of the Legislative branch, isn’t entirely objective in its analyses of what the Executive branch should, or should not, be?

A data point, wasn’t it, and not a Rosetta Stone?
 
Written By: Gary
URL: http://
couple of things -

the CRS is a branch of the library of congress that conducts non-partisan research for Congress. in the past they have put out analyses that have sided with the executive, or even judicial branch.

and jon-

there’s no point in responding to bithead because he’s a complete blowhard. he tries really hard to sound both intelligent, and worse yet, intellectual, by trying to belittle the intelligence of others. but in reality, if you go back and read a large sampling of his posts, as i have, there’s very little substance to his posturing. he’s worse than a charlatan. he’s a lazy charlatan.

and bithead - go ahead and talk about how i have to resort to personal attacks because i have nothing substantial to say on this matter or some other predictable comment. everything you say is so passe that you should just stick to writing on your own blog, and leave the serious commentary on this blog to others. man - i’m sick of reading your impertinent little quacks. if i ever met you in real life i’d wring your little scrawny neck.

 
Written By: bill
URL: http://
go ahead and talk about how i have to resort to personal attacks because i have nothing substantial to say on this matter
I don’t need to. You just demonstrated it, without my help.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
A data point, wasn’t it, and not a Rosetta Stone?
Correct.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
"Inter alia, it’s where the soldiers are fighting."

I don’t think there can be any reasonable doubt the AlQaeda’s soldier are trying to fight here, would like to fight here, and likely will someday achieve it again. The CRS report notwithstanding, there is no requirement in the Consitution as to what a "declaration of war is", much less a definition of what an allowable battlefield is, if Congress says they’ll foot the bill for our soldiers shooting at people, it’s a war.

Mr. Henke’s strained arguments hve no bearing on reality on this question.

Also, as released by AlQaeda a few days ago:

"http://www.breitbart.com/news/2006/01/09/060109051601.0pm2jjra.html

The Iraqi Al-Qaeda leader then laid down two conditions for giving up the jihad.
"First, chase out the invaders from our territory in Palestine, in Iraq and everywhere in Islamic land.
"Second, instal sharia (Islamic law) on the entire Earth and spread Islamic justice there (...). The attacks will not cease until after the victory of Islam and the setting up of sharia," he swore."

It sound like he knows where the battelfield is, and that’s wherever we are unwary or unlucky enough that they can strike us.

Do you have any quibbles with that definition of the battlefield?

I suggest that if you want to squak uselessly, the broadening of the Patriot Act to cover drug crimes is a more profitable area.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Jon,
The CRS is correct in some areas and not in others.
the problem with it is perhaps mentioned as regards Padilla, here

The terrorists responsible for hijacking the September 11th commercial planes certainly were engaged in active combat before they used the first box cutter. They were engaged in active combat when they stepped onto those fated planes. They were engaged in active combat as they trained to fly the planes but not land them. And certainly the saboteurs in Ex parte Quirin were engaged in active combat when they came ashore on a U.S. beach to detonate explosives at U.S. facilities.

Terrorism by its very nature is not an act of traditional war. The terrorist does not declare war and meet its enemy on a battlefield. The terrorist takes hostages in order to bargain for or take their lives, the terrorist blows up buildings and bridges, the terrorist commits smaller scale killings and assassinations. These are examples of a terrorist’s definition of active combat.
Are you (...and by extension, the CRS) really suggesting these do not constitute a war? Seems an unsatisfactory way of dealing with the problem. How many citizens die while we dance around of the head of a legal definition of ’war’?
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Tom:

Well put.
 
Written By: Bithead
URL: http://bitheads.blogspot.com

 
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