Not Authorized By Law: Domestic Spying and Congressional Consent

JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that contrary to assertions by President Bush and the US Department of Justice, post-9/11 Congressional legislation on the use of military force against terrorists does not authorize domestic spying...



George W. Bush and US Attorney General Alberto Gonzales claim that domestic spying in manifest violation of the Foreign Intelligence Surveillance Act (FISA) was authorized by Congress in broad language in the 2001 Authorization for Use of Military Force (AUMF) regarding persons responsible for the 9/11 attacks. Similar claims have been made in a December 22 letter from Assistant Attorney General William Moschella to the leaders of the House and Senate Intelligence Committees. The claims are patently false.

First, there is no persuasive evidence that when passing the AUMF Congress intended to override either criminal or other provisions of the FISA requiring Executive compliance with the FISA process for foreign intelligence surveillance. Second, the AUMF contains no express or implied authorization concerning intelligence surveillance either abroad or within the United States. With respect to Executive action against certain persons, the purpose of the AUMF is clearly contained in the authorization to use merely "necessary and appropriate force" against those "nations, organizations, or persons" that "planned, authorized, committed, or aided" the 9/11 terrorist attacks as such or that "harbored such ... persons." The authorization of appropriate "force" is not an authorization to torture or to use cruel, inhuman, degrading, or humiliating treatment against any human being; it is not an authorization to create military commissions that are otherwise without jurisdiction under constitutional and international law and violate due process; and it is certainly not an authorization to spy on persons within the United States. Moreover, Congress has only authorized use of "appropriate" force. The word "appropriate" creates a statutory limitation that necessarily requires Executive compliance with relevant constitutional, international, and other federal laws, especially since Supreme Court opinions have long recognized that relevant international law and prior federal statutes are a necessary background more generally for interpretation of newer federal statutes.

Indeed, under Article II, Section 3 of our Constitution the President has an express and unavoidable duty to faithfully execute the "Laws" and has no power to violate them. As Richard Nixon learned, presidential authorizations to violate the law are, in the words of the House Judiciary Committee, "subversive of constitutional government." Additionally, since 1800 Supreme Court opinions have recognized the power of Congress to limit certain Commander in Chief powers during actual war (see, e.g., 43 Colum. J. Transnat'l L. 811, 842 n.114 (2005)), such as the wars in Afghanistan and Iraq, but the Commander in Chief power does not apply outside of an actual war and the United States cannot be at "war" with al Qaeda as such (see, e.g., 28 Yale J. Int'l L. 325, 326-28 (2003)). In his letter Assistant Attorney General Moschella seriously misread the Prize Cases (1863) by ignoring the fact that the Supreme Court expressly referred to two early federal statutes that "authorized ... [and] bound" the President, demonstrating another instance of congressional power to regulate portions of the Commander-in-Chief power even during actual war. Moreover, any so-called inherent presidential authority to spy on Americans at home (perhaps of the kind denounced in Youngstown (1952) and which no strict constructionist should pretend to recognize), has been clearly limited in the FISA in 18 U.S.C. § 2511(2)(f) and 50 U.S.C. § 1809(a)(1), as supplemented by the criminal provisions in 18 U.S.C. § 2511(1).

Third, whatever authorizations exist in the AUMF to use force, it is evident that they are restricted in two important respects. The first restriction is recognizable in language reflecting past events. The words "planned, authorized, committed, or aided" refer to the past and more specifically merely to the events of 9/11. The word "harbored" is also oriented in the past. Congress may have neglected certain future dangers to the United States, but neither the President nor the courts have constitutional authority to rewrite congressional legislation. The second restriction is more significant. With respect to the persons against whom appropriate force can be directed, the authorization is expressly and unavoidably tied to those who "planned, authorized, committed, or aided" the 9/11 attacks as such or who "harbored such ... persons." What is not covered by the language of the AUMF is use of appropriate force against those who merely have, in the President's words, "known links" with al Qaeda and in Assistant Attorney General Moschella's words, links with "an affiliated terrorist organization" (whatever the Orwellian limits of those phrases might imply). Also not covered are misguided persons who merely sympathize with the 9/11 terrorists, all persons who pose "a threat of future terrorist attacks," or persons who simply communicate with them.

The FISA provides an appropriate national security tool for spying on transnational communications with the 9/11 and other terrorists. The AUMF does not do so and offers no aid for presidents and others who undertake domestic spying - or for that matter torture or unconstitutional military commissions - in violation of the laws of the United States:
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government....
United States v. Lee (1882).


Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former Captain, U.S. Army JAGC and member of the faculty at the Judge Advocate General's School (1969-1973). He is also Co-Chair of the American Society of International Law International Criminal Interest Group.
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