OTOH, if most legal scholars think it’s illegal, including even the ones that Brit Hume and Bill O’Reilly can dig up, the fact that you’re a lawyer and you’re saying it’s legal doesn’t mean so much, unless you’ve got some pretty strong arguments.
Instead, your arguments seem to rely on stuff like assuming the statutory use of “declaration of war” doesn’t mean the same “declaration of war” that everything from the Constitution to popular use (at least among reasonably educated people) says it means, but has some other meaning, despite the statute’s not saying a blessed thing to suggest that.
Nobody interviewed Cass Sunstein, law porofessor at the University of Chicago, except the LA Times, I guess. They quote him as saying, “I think the authorization of use of military force is probably adequate as an authorization for surveillance.”
Is he more specific than that? If he’s claiming it’s adequate as an authorization for universal surveillance, or surveillance of whoever the government damned well pleases to surveil (if that’s the root word), then that’s one hell of an incentive for the Executive’s purporting that Oceania is always at war with Eurasia, or Eastasia, or somebody.
I’d say if Bill O’Reilly’s guests aren’t licking Bush’s boots, it’s a good sign that Bush has stepped in something. Certainly you can find lawyers on both sides of the issue, but the consensus I’m starting to get from prominent lawyers who have been quoted seems to be that Bush did indeed violate the law.
Bricker - I can see you responding to other posts, so you are active in this thread, but you keep ignoring these questions. Which I guess is your right, but it really doesn’t do much for your argument in my opinion.
I answered it in the other thread, and I’ll answer it here: you cannot interpret laws in such a way that the result is an absurdity. That’s a basic rule of statutory construction. The idea that Congress intended a war to begin and end in fifteen days, or intended to give the President authority only for the first fifteen days of a longer war, makes no sense. For international communications, which are clearly the most dangerous in wartime, the idea that Congress meant ONE period of fifteen days is an absurdity.
Fifteen days PER TARGET, on the other hand, is very reasonable. In that time, Congress could have assumed the President would either discontinue surveillance or apply for a warrant.
Bricker, I can cite exactly 30 provisions of law that make specific reference to powers granted to the President after a “declaration of war.” I can cite 170 provisions of law that grant specific powers during “a time of war.” If Congress meant “during time of war,” isn’t it reasonable to assume that they would have written “during time of war?”
Congress has passed 11 resolutions declaring a state of war. I can count 12 times, going back to May 28, 1798, that Congress has passed an authorization for the use of military force that did not specifically declare war. I’d be happy to cite those resolutions, if you wish. (In fact, the War Powers Resolution you keep referring to clearly states that various restrictions on the president do not apply if Congress has passed a declaration of war OR a authorization for the use of force, giving further credence to the ability of the legislative branch to distinguish between the two.)
I am informed also that since 1800, the Supreme Court has recognized the difference between “perfect war” (or general war) and “imperfect war” (or limited war). On this point I should probably defer to your expert interpretation of the case I have been cited. But by my reading, the Supreme Court in this ruling noted that the authorities of a government in general war would exceed those of limited war, indicating that all wars are not the same, and that the law is capable of distinguishing between limited and general war.
Now, given this evidence, that our statutes, our legislature, and our courts have quite clearly distinguished a “declaration of war” from “a time of war,” it strikes me as unconvincing that simply omitting the definition of a term that has been used with precision in matters of law and policy for more than 200 years should give the executive carte blanche to follow the broadest, most unrestrained possible definition of that term.
Now, I’m a historian, not a lawyer, so I must ask this question: Do courts commonly ignore such a well-established historical record of how key terms (like declaration of war) have been used in the past, simply because Congress may have omitted a definition from one section of a statute?
For example, if Congress uses the term “president” in a statute, but does not define the word in that section of law, would it be expected that a smart attorney might be successful in convincing a court that the reference to “president” in said law actually pertains to the chief executive of Peru or the top man at IBM?
Absolutely. So why then do you go on to say that when Congress said"surveillance" they meant “war”? That result is an absurdity
They said no such thing, and nobody but you claims they did
And yet, for the purposes of the law in question, that’s exactly what they did. They said it outright, “for a period not to exceed fifteen calendar days from a declaration of war by Congress”.
Yet that’s what they did, and that is in fact the law. Oh, there’s another part, that they could grant extensions upon request. Somewhat less absurd, isn’t it? Yet you ignore that bit of the law, in your cherry-picking.
Except for the part about that not having any statutory basis at all. Speaking of interpreting laws, and your respect for them, that is.
You don’t get to make your own fucking interpretations just to fit what you think the law ought to be. You especially don’t get to make them up out of whole cloth to justify whatever the hell you want to. And you *decry * activism?
Indeed they are. And in that ruling, the Court succinctly stated:
Which is kinda the point I’m making.
The courts may well rule as you suggest: that Congress did not intend to give the executive carte blanche.
If they do, AT THAT POINT it will be settled law. Prior to that ruling, it’s an open question, and the President is entitled to construe the term in the most broad and unrestrained way he pleases.
Again: I don’t argue that my view is the unquestionably correct one. I merely argue that it’s a reasonable one. And, further, that those who state, categorically, unquestionably, that the President broke the law are making a mistake.
Thats not an absurdity at all. Its perfectly reasonable that Congress would give emergency powers to the President early in the war before adequate mechanisms can be set up. Its also perfectly reasonable to take away those powers after a reasonable period of time for those mechanisms to be put in place.
First of all Bricker - thank you for finally giving an actual explanation, rather than just saying “you’re wrong and I’m right” over and over. Might I suggest you copy this actual explanation into the pit thread as well?
I was going to write another rebuttal to Bricker, but just imagine I copied ElvisL1ves’ great response here instead.
And, I think its absurd to think the the law was written to mean random 15 day periods, with no warrant, no language on how many times that can be done, and for how many years. Oh, and we’ll just throw the word “calendar” in there also even though its meaningless with this interpration.
IYHO, or do you have some legislative history or case law supporting this? Because that’s not the plain wording.
I’ve met you. You’re certainly old enough to remember the Hundred-Hour War of 1991; those of us with longer memories recall the Six-Day War of 1967.
At any rate, I don’t see how he’s supporting your argument, or vice versa, unless you really are saying that the President can wiretap whoever he damned well pleases during times of declared or undeclared war, so long as Congress authorizes the hostilities in some fashion, and no one person is wiretapped for more than 15 days.
That’s quite a sweeping grant of power. Did it apply during the Cold War? Would it have applied during Vietnam? Korea? Our involvements in Grenada, Haiti, Panama, Somalia, Bosnia, Kosovo? Gulf War I?
Surely there has to be some limit. For example, the authorization for the use of force against Iraq specifically mentioned that Iraq is the location for which military force is authorized.
What if the President were to argue, for example, that the country of Iraq for a brief time also consisted of the area we commonly call Kuwait. Would the President be entitled to make war upon Kuwait because it is his prerovative to interpret that authorization in the most broad and unrestrained manner he possibly can?
I would hope you would agree that this would be a laughable usurpation of congressional intent.
By what principle should the Executive be entitled to use the term 'declaration of war" to be the same as “a state of war,” but that the President would be acting irresponsibly if he were to make a technical argument that Kuwait could, by the rationale of some, be considered part of Kuwait?
To put it another way, if the President has the authoriity to reinterpret the term “declaration of war” as it has been specifically used since the time of Grotius, would you also argue that the President has the justifiable authority to redefine geography as he sees fit, until a judge tells him to stop? I am just unable to fathom how this type of behavior is consistant with the obligation to ‘faithfully execute’ our laws.
If you are indeed arguing that the President has the authority to interpret laws how he likes until a court rebukes him, would you also agree that I have the authority to rob little old ladies until I am convicted of a crime?
Criminal law is construed strictly against the prosecution. I am arguing that the President is not guilty of a criminal offense.
If I were a judge, and the question was an injunction prohibiting the President from continuing this monitoring program, I’d read the text of the law as you suggest and grant the injunction, finding that the intent of Congress was not to permit the President to do what he’s doing.
But to find the President guilty of a criminal offense means that every reasonable hypothesis EXCEPT guilt must be eliminated. If the president can show he adopted my reasoning, he’s not guilty of a criminal offense.
But the Court in Bas went on to find that Congress had “by its acts and declarations” created a state war with France. And they did so without ever saying “We declare a state of war exists between us and France,” or anything similar.
So was the 1798 “war” with France declared? Or not?
Wait a minute. You would agree that the intent of congress (and therefore the wording of the law) was to not allow the President to do what he is doing?
But a few posts up you told us all that our reading of the law was “absurd”