Note: subject is continued at: http://garveys-ghost.blogspot.com/2006/01/answering-big-man-questions.html
Also be sure to catch the latest on the debate at: http://garveys-ghost.blogspot.com/2006/02/american-big-man-part-iv.html
The running joke about African leadership is the "Big Man of Africa" joke. For those unfamiliar it is applied to African leaders who stay in office in perpetuity and use the office as their personal fiefdom. I would like to propose that the Bush Regime is no different, unless the so called "opposition" decided to actually show some backbone, balls and brains. It is arguable that the president Bush got into power thanks to the Supreme Court rather than the people. It is also arguable that the president got into office the second time by threatening the press regarding his domestic spying. We know the Times knew about these happenings before the election and failed to report on it because the Bush people claimed "national security." This post is about that issue.
The New York Times is reporting that:
WASHINGTON, Jan. 19 - The Bush administration today offered its fullest defense of the National Security Agency's domestic eavesdropping program, saying that congressional authorization to defeat Al Qaeda after the Sept. 11 attacks "places the president at the zenith of his powers in authorizing the N.S.A. activities."
In a 42-page white paper, the Justice Department expanded on its past arguments in laying out the legal rationale for why the N.S.A. program does not violate federal wiretap law and why the president is the nation's "sole organ" for foreign affairs.
The text of this argument can be found here:http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
It is a long read full of Supreme Court decisions (most notably the Hamdi decision which we discussed here on the Ghost)The hub of the argument is that on Sept 14 the Congress authorized president Bush to do whatever he deemed necessary to fight terrorism. Read the report and they will say it over and over again. Now let's look at the actual text of the Sept 14, 2001 resolution.
H.J. Res. 64
Whereas, on September 11, 2001, acts of treacherous
violence were committed against the United States and its
Whereas, such acts render it both necessary and appropriate
that the United States exercise its rights to self-defense
and to protect United States citizens both at home and
Whereas, in light of the threat to the national security
and foreign policy of the United States posed by these grave
acts of violence; and
Whereas, such acts continue to pose an unusual and
extraordinary threat to the national security and foreign
policy of the United States; and
Whereas, the President has authority under the Constitution
to take action to deter and prevent acts of international
terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the ``Authorization
for Use of Military Force''.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) In General.--That the President is authorized 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, or harbored such organizations or
persons, in order to prevent any further acts of
international terrorism against the United States by such
nations, organizations or persons.
(b) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.
(2) Applicability of other requirements.--Nothing in this
resolution supercedes any requirement of the War Powers
Now here's the important thing. Section 2 (b) declares that the AUMF is meant to be consistent with the War Powers requirement (we'll get to that in a minute) an d section 2(b)(2) also specifis that:
Applicability of other requirements. -- Nothing in this resolution supercedes any requirments of the War Powers resolution.
With that statment, we know that the AUMF was not meant to expand presidential authority beyond what is allowed by the War Powers Resolution.
Therefore to my reading the War Powers resolution is where the buck stops in terms of presidential authority (and is why we critiqued the Supreme Court when it handed down it's asinine decision regarding Padilla and Hamdi).
Now the War Powers resolution can be found here: http://www.cs.indiana.edu/statecraft/warpow.html
The AUMF specifies that it is in accordance with sec 8(a)(1):
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution;
Further in the War Powers Resolution it states:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
SEC 8. (c)
For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.
Nothing in this joint resolution--
is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.
These are my italics. I understand 8(d)(2) to read that the War Powers Resolution does not grant any authority to the president that he would not have had in the absence of the resolution. So The President can only assume his commander in Chief rights where there is "imminent" danger.
*Do note the conspicuous appearance of Osama Bin-Ladin on the same day that the Bush regime put forth it's argument for NSA spying.*
Since the FISA laws are required to be observed by the Commander-In-Chief, and avoiding the FISA laws is not something that can be authorized by the president, meaning he did not have the power before the "war" event so he doesn't have it now, then Bush's argument that the AUMF and the WPA gives him the authority to spy on citizens within' the US are legally unfounded. The only way that the president can get around this is if the Supreme Court is called in and they make the same mistake they made with the Hamdi case.
Is Sammy Alito is confirmed and this case comes before the Supreme Court while he is there, expect a split decision with Alito, Scalia, Thomas and Roberts on the side of the president. If the decision goes for Bush, the US will have officially become a constitutional dictatorship with Bush being the first official "American Big Man."