For a week they've claimed they can do whatever they want. Now . . .

[bigtree]

they're crying that this opposition to the Patriot Act will weaken their ability to . . . do whatever they want.


Because of the authorization to 'fight terror', they have been claiming that they would not be restrained by laws and regulations because all Bush would have to do is declare his actions a response to a threat. Here's Gonzales the other day:

"We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." And the Supreme Court, a plurality written by Justice O'Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. So even though the authorization to use force did not mention the word, "detention," she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."

and,

"For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States. Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision. We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance."

http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html


So they claim that Bush can put whatever subject he wants behind the authorization, 'detention', 'wiretaps', whatever, any target, as long as he claims his actions are directed against an 'enemy'.

It not like the Congress finally got some backbone and actually moved to challenge Bush's arrogant indifference to the legislature and the Constitution. They just made a basket full of intrusions illegal. But, it's not like it really matters to these goons. They just see this epic pout for their meddling tool as a chance to put the responsibility for their incompetent 'war on terror' on the backs of Democrats.

[TahitiNut]

1. What they claim is that they're so abysmally incompetent ...

... that they can't do the job without powers and authorities unknown to any prior administration. These weasels control the Executive, both houses of Congress, and the Supreme Court ... and they're STILL complaining they can't do the job. Fuck 'em!

[bigtree]

6. and they claim that they have these extra powers because we are at war

What is the definition of 'at war'? There is no declared war. If it's the 'war on terror' then it could go on forever. Every president for centuries would have carte-blanche to do whatever they pleased, legal or not, in the name of fighting terror.

[TahitiNut]

7. War on Terrorism - War on Drugs - War on Poverty

Perpetual war. Not a single "enemy" whose surrender would end the "war" so there's literally no end. This country is so fucking STUPID that these fascist fucks can count on at least 30% swallowing this total hogwash. It makes me glad I'm old. I'd hate to have to look ahead to living in this shit much longer.

[CJCRANE]

2. He's winging it -

"use force" and "detention" do not mean the same.

Why don't they just outlaw all dictionaries and create their own Neocon-Approved Neo-English Dictionary ^TM

[bigtree]

3. O'Conner and others on the Court bought it

I wonder if they meant for the scope of that ruling to be interpreted so broadly.

[CJCRANE]

4. It's a mockery -

there's no point in having laws if it's just a game of word association.

Force => war => war president => enemy combatant => dentention = >spying => anything we say

[stillcool]

5. Exactly...the law of the land...

apply's to all but republicans. They deem themselves above such distractions.

[bigtree]

8. This is all a result of the timidity of Congress

If they would just step up and assert the authority given them in the Constitution they could put more rationality in the deployment of our troops. At least it would more reflect public will. But they are cowed by their patriotic insecurity. One vote cutting the Iraq funding in half would end the occupation, much like Congress did to Reagan after the Beruit bombing. But, they are some weak pols down there in the swamp. No one wants the reins of this bucking horse.

[Toots]

9. an American citizen captured on the battlefield as an enemy combatant

What battlefield was Padilla captured on? I thought he was caught in chicago for attempting to make a dirty bomb but then they dropped that charge...

[bigtree]

10. Yaser Esam Hamdi - a U.S. citizen captured in Afghanistan

"The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons (the President) determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident(s) of waging war," and both of these Executive actions are such "fundamental incidents" of waging war."

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.

the rest: http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html