So What else in the US Constitution Doesn't Apply During a Self-Declared War?

[Cylinder]

The war is undeclared...

This is clearly not the case. The difference between the AUMF and a declaration of war is diplomatic semantics and simply has no bearing whatsoever on constitutional issues. In the AUMF, Congress clearly asserts its power under the War Powers Act, which in turn draws its power from its Article I; Section 8 power to declare war.

 

[Cylinder]

Actually no. As I pointed out, the posse comitatus act does not apply in that hypothetical situation.

The question is not only if it would apply - but why. You would agree that if I held my ex wife hostage in the same chemical plant that the Posse Comitatus Act would restrict the President, right?

Why not in the case of al Qaeda?

 

[President Bush]

In the AUMF, Congress clearly asserts its power under the War Powers Act, which in turn draws its power from its Article I; Section 8 power to declare war.

But does the AUMF justify warrantless domestic surveillance?

The Supreme Court considered the legal effect of the AUMF in Hamdi vs Rumsfeld. From Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Breyer, and Justice Kennedy:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

 

[Mycroft]

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

My understanding is that this issue concerns wiretaps on international phone calls. How come you keep calling them warrantless domestic surveillance? Is there more to this that I don't know about?

 

[hammegk]

But does the AUMF justify warrantless domestic surveillance?

I'd say definitely no.

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

Executive Constitutional powers are neither authorized by nor can they be legally encroached on by congress.

The problem is switching from 'acts of war' to law enforcement.

Given that (known terrorist)foreign.A calls US.B; then US.B calls US.C, D, & E, and A to B is deemed to fit under 'acts of war'. Is B to C war or law enforcement? What is the status of future calls C to D?

This is the classic FBI/CIA wall problem.

 

[President Bush]

My understanding is that this issue concerns wiretaps on international phone calls. How come you keep calling them warrantless domestic surveillance? Is there more to this that I don't know about?

Tension between our constitutional freedoms and our national security in wartime ain't new. NSA spying on US citizens is.

The NSA already monitors (virtually all?) satellite, microwave, cellular, fiber-optic communications traffic on Earth looking for code words or phrases that will prompt the computers to flag the message for recording and transcribing for future analysis.

Though, supposedly, FISA warrants are still required for eavesdropping on entirely domestic-to-domestic communications, under the law FISA warrants are required for any acquisition in the US.

Government has the right to keep temporary secrets, but it don't have the right to avoid the systems designed to document what it does do.

Was spying done on people within this country who have absolutely no ties to any terrorist or terrorist organizations?

 

[President Bush]

But does the AUMF justify warrantless domestic surveillance?

I'd say definitely no.

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

Executive Constitutional powers are neither authorized by nor can they be legally encroached on by congress.

Better have a talk with your Attorney General:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

 

[Mycroft]

But does the AUMF justify warrantless domestic surveillance?
Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

You didn't answer my question the first time, so let me repeat it:

My understanding is that this issue concerns wiretaps on international phone calls. How come you keep calling them warrantless domestic surveillance? Is there more to this that I don't know about?

 

[hammegk]

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

Again, I'd say no.

Better have a talk with your Attorney General:

He makes a point that imo has a very slight chance of passing SCOTUS agreement. Nothing wrong with staking out intermediate positions prior to playing the Exec Privilege trump card. Keep arguing FISA/AUMF in the courts 'til the cows come home is a reasonable political ploy.

NSA spying on US citizens is.

Well, publicizing it is.

Though, supposedly, FISA warrants are still required for eavesdropping on entirely domestic-to-domestic communications, under the law FISA warrants are required for any acquisition in the US.

Agreed. When do we switch to law enforcement.

Was spying done on people within this country who have absolutely no ties to any terrorist or terrorist organizations?

I'd suggest, "yes", but until you spy down the daisy-chain of who calls who, who knows? 30,000 or 300,000 dead-on-US-soil will provide a different mindset for those charged with answering whether that question applies to the circumstances at hand.

 

[Cylinder]

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

Sure. Name a war that the US was a party in which signals intelligence did not play a signifigant role.

Remember Pearl Harbor? Hours before the attack the Signals Intelligence Service - a preciursor of the National Security Agency - intercepted the diplomatic message from Tokyo to the Japanese ambassodor to the US in which Japan informs the US of attacks and breaks off diplomatics relations.

In the US Civil War, there was a almost universal practice of telegraph taps to glean intelligence from opposing forces. In fact, modern US cryptographic practices date back to the US Civil War.

There was a incident during WWII, related in his six-volume history, where Britsh PM Winston Churchill had his private phone call to FDR interrupted by a US telephone censor for discussing strategic matters over an unsecure line.

During the course of the war, civilian communication from sensitive war industry areas such as Oak Ridge, Los Alamos, and naval yards were routinely monitored for espionage indicators.

Once again quoting Justice O'Connor in Hamdi:

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

 

[President Bush]

You didn't answer my question the first time, so let me repeat it:

My understanding is that this issue concerns wiretaps on international phone calls. How come you keep calling them warrantless domestic surveillance? Is there more to this that I don't know about?

The warrantless domestic surveillance I refer to is NSA spying on US citizens at home here in America. Illegal without FISA warrant.

Would it be not illegal if the surveillance, somehow, really didn't take place in the United States - acquired at satellite, foreign listening post - so that the FISA prohibition on NSA listening in on telephone calls and reading e-mails of U.S. citizens without FISA court authorization was moot? Dunno...

Otherwise, things are pretty clear. What we're talking about is defined under Title 50 US Code 1801 (f)(2):

the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

A US person is defined in the same Title 50 US Code 1801 (i):

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

As far as defining US-based agents of al Qaeda to be non-US persons, well, I'm all for it. Assuming that the persons defined as US-based agents of al Qaeda actually are.

The possibility of the President ordering wiretaps against people who are not legitimate targets of surveillance is one of the main reasons we have a FISA court.

 

[President Bush]

He makes a point that imo has a very slight chance of passing SCOTUS agreement. Nothing wrong with staking out intermediate positions prior to playing the Exec Privilege trump card. Keep arguing FISA/AUMF in the courts 'til the cows come home is a reasonable political ploy.

Do you have one of those strange Solicitor General-style outfits with the nappy striped pants and gray ascot on as you argue this case on your computer?

The more you articulate your views the more I realize how fortunate we are in this country to have - as a bulwark of our American Liberty - the safeguards offered by after the fact under-wraps proceedings issuing secret retroactive warrants.

 

[President Bush]

Is warrantless domestic surveillance of US citizens "so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use"?

Sure. Name a war that the US was a party in which signals intelligence did not play a signifigant role.

Remember Pearl Harbor? Hours before the attack the Signals Intelligence Service - a preciursor of the National Security Agency - intercepted the diplomatic message from Tokyo to the Japanese ambassodor to the US in which Japan informs the US of attacks and breaks off diplomatics relations.

In the US Civil War, there was a almost universal practice of telegraph taps to glean intelligence from opposing forces. In fact, modern US cryptographic practices date back to the US Civil War.

There was a incident during WWII, related in his six-volume history, where Britsh PM Winston Churchill had his private phone call to FDR interrupted by a US telephone censor for discussing strategic matters over an unsecure line.

During the course of the war, civilian communication from sensitive war industry areas such as Oak Ridge, Los Alamos, and naval yards were routinely monitored for espionage indicators.

Once again quoting Justice O'Connor in Hamdi:

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Lots of quotes we can pick out of Hamdi. Don't forget while they ruled that an American citizen could be held as an enemy combatant, that that citizen’s due process rights also entitled him to have a meaningful opportunity to contest the designation as an enemy combatant. Among other things...

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date.

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”).

Still don't see how the AUMF authorizes warrantless domestic surveillance: How is wiretapping a "use of force"?

And like O'Connor said in the first quote above: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

If the purpose of surveillance is like that of interrogation - to get information - and if indefinite detention for the purpose of interrogation is not authorized... how can warrantless domestic surveillance over indefinite time be authorized?

 

[hammegk]

Do you have one of those strange Solicitor General-style outfits with the nappy striped pants and gray ascot on as you argue this case on your computer?

Could you re-phrase that?

The more you articulate your views the more I realize how fortunate we are in this country to have - as a bulwark of our American Liberty - the safeguards offered by after the fact under-wraps proceedings issuing secret retroactive warrants.

But 'ya only need those anyway if you decide to try your luck in a court of Law. Do your damn duty and quit sniveling.

 

[varwoche]

This is clearly not the case. The difference between the AUMF and a declaration of war is diplomatic semantics

It's a point that can be reasonably debated. "Clear" it isn't though.

What is clear is that the wiretapping was institued without congressional oversite -- notification came much after the fact.

And what's also fairly clear is that the WOT is a semi-permanent state of affairs, unlike prior wars when emergency powers were implemented.

 

[Cylinder]

It's a point that can be reasonably debated. "Clear" it isn't though.

You're right - I should have said "clear to me." From what constitutional power does the AUMF ultimately stem? Absent the power to declare war, from what enumerated power could Congress have derived the AUMF?

What is clear is that the wiretapping was institued without congressional oversite -- notification came much after the fact.

Intelligence oversight does not, as far as I am aware, require Congressional notification or approval prior to instituting a collection operation. It requires, as best as I can remember, that the intelligence community and the executive keep Congress periodically informed on collection activities and budgetary concerns. From a constitutional aspect, the executive controls collection activities through his power as CINC.

And what's also fairly clear is that the WOT is a semi-permanent state of affairs, unlike prior wars when emergency powers were implemented.

But, as pointed out by Justice O'Connor in the Hamdi decision, that question need not yet be answered, since there still exists ongoing overt hostilities - such as that in Afghanistan.

 

[Cylinder]

Still don't see how the AUMF authorizes warrantless domestic surveillance: How is wiretapping a "use of force"?

In the same way that the AUMF authorizes detention - it's not all bullets and bombs. Congress legislated a common-sense and necessarily broad statutory authorization of presidential war powers in the AUMF. The AUMF authorizes many non-combatant war-related activities. The NSA is a combatant organization - a fact which should answer the question in itself.

And like O'Connor said in the first quote above: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

If the purpose of surveillance is like that of interrogation - to get information - and if indefinite detention for the purpose of interrogation is not authorized... how can warrantless domestic surveillance over indefinite time be authorized?

Since the temporal question was answered (or not answered according to your view) in plain language both in Hamdi and reiterated in my previous post, I'll just say that question need not be answered at this point.

In Hamdi, the court, relying on Quirin, found that detaining enemy combatants was, by “universal agreement and practice,” an “important incident of war.”

It also found a clearly-established principle that "detention may last no longer than active hostilities." In responding to Hamdi's argument against "indefinite or perpetual detention," the court found that "indefinite detention for the purpose of interrogation is not authorized."

Nowhere does it state that intelligence collection is not an important incident to war - it argues that, at the end of active hostilities, intelligence collection is not sufficient grounds to prolong detention. For the sake of context, the two relevant paragraphs state - with citations omitted:

It is a clearly established principle of the law of war that detention may last no longer than active hostilities.

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

In fact, the mention of intelligence collections by Justice O'Connor tends to buttress the argument of it being a important incident of war.

 

[Cylinder]

Intelligence oversight does not, as far as I am aware, require Congressional notification or approval prior to instituting a collection operation. It requires, as best as I can remember, that the intelligence community and the executive keep Congress periodically informed on collection activities and budgetary concerns. From a constitutional aspect, the executive controls collection activities through his power as CINC.

Just to clarify the top-of-the-head information I provided above, the Intelligence Oversight Act of 1980 governs the IC and executive reporting requirements. The statutory requirements are codified in United States Code; Title 50; §413 - General Congressional oversight provisions:

(a) Reports to Congressional committees of intelligence activities and anticipated activities

(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this subchapter.

(2) Nothing in this subchapter shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity.

Specific procedural statutes can be found in 50 USC §413b - Presidential approval and reporting of covert actions:

(c) Timing of reports; access to finding

(1) The President shall ensure that any finding approved pursuant to subsection (a) of this section shall be reported to the congressional intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3).

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

(3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section,[1] the President shall fully inform the congressional intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.

(4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be provided to the chairman of each congressional intelligence committee. When access to a finding is limited to the Members of Congress specified in paragraph (2), a statement of the reasons for limiting such access shall also be provided.

 

[President Bush]

In the same way that the AUMF authorizes detention - it's not all bullets and bombs. Congress legislated a common-sense and necessarily broad statutory authorization of presidential war powers in the AUMF. The AUMF authorizes many non-combatant war-related activities.

Such as tracking domestic threats like these?

Also, if the AUMF had authorized court-free wiretapping, why would the executive have sought an expansion of the reach of FISA in the USA Patriot Act II when it already had been granted a greater power to surveil (through the AUMF) than an expanded FISA could provide?

Since the temporal question was answered (or not answered according to your view) in plain language both in Hamdi and reiterated in my previous post, I'll just say that question need not be answered at this point.

I don't want to talk in circles with you, either. But I believe that my questions are still open questions, legally. The answers may not be as certain as you seem to suggest.

In Hamdi, the court, relying on Quirin, found that detaining enemy combatants was, by “universal agreement and practice,” an “important incident of war.”

It also found a clearly-established principle that "detention may last no longer than active hostilities." In responding to Hamdi's argument against "indefinite or perpetual detention," the court found that "indefinite detention for the purpose of interrogation is not authorized."

That last sentence is an understatement.

Nowhere does it state that intelligence collection is not an important incident to war - it argues that, at the end of active hostilities, intelligence collection is not sufficient grounds to prolong detention. For the sake of context, the two relevant paragraphs state - with citations omitted:

In fact, the mention of intelligence collections by Justice O'Connor tends to buttress the argument of it being a important incident of war.

I quoted Hamdi only because the Supreme Court had considered the legal effect of the AUMF there. Of course, the Supreme Court has not (yet) heard arguments concerning the administration's (AUMF authorized?) bypass of FISA... what this is all about.

 

[Mycroft]

The warrantless domestic surveillance I refer to is NSA spying on US citizens at home here in America. Illegal without FISA warrant.

If the wiretaps were of international calls, the surveillance was not domestic.

Let's refresh ourselves on the definition of "domestic.":

do•mes•tic (də-mĕs'tĭk)
adj.
1. Of or relating to the family or household: domestic chores.
2. Fond of home life and household affairs.
3. Tame or domesticated. Used of animals.
4. Of or relating to a country's internal affairs: domestic issues such as tax rates and highway construction.
5. Produced in or indigenous to a particular country: domestic oil; domestic wine.