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Monday, February 13, 2006

Why the AUMF doesn't allow for Warrantless Wiretaps

I just got back from a great American Consitution Society event regarding warrantless wiretaps. Before these great insights leave my mind, let me quickly refute a common Republican argument: the AUMF (Authorization for Use of Military Force) does not support the use of Warrantless wiretaps. The AUMF's purported authority for warrantless wiretaps is a line which gives the President the power to use all neccessary and appropriate force to catch the 9/11 terrorists. Republicans charge that this includes the use of warrantless wiretaps. These aren't my ideas, but they ring true:

1. A fundamental tenant of statutory construction is that specific statutes trump general statutes.
The 1978 FISA statute explicitly covers warrantless wiretaps such as that done by the NSA. The AUMF doesn't mention warrantless wiretaps and instead could only conceivably cover it in the most broad terms possible. The specific statute, FISA, should trump the AUMF.

2. FISA specifically contemplated its use in a time of war.
One of the exceptions to the FISA requirement is that the President can conduct warrantless wiretaps without a warrant for 15 days after a formal congressional declaration of war. It neccessarily follows that FISA was intended to still control warrantless wiretaps in the event of a formally declared war. Since this obvious truth emerges, it cannot be claimed that FISA will not control in the event of an undeclared war.

3. FISA has been amended several times since 9/11.
If the AUMF made FISA a moot statute, why has the President worked with the Congress to amend FISA multiple times since the AUMF? This indicates that the Executive believes that FISA still controls. If it still controls in some areas, it still controls in others. It makes no rationale since to say that FISA doesn't apply when the President determines it doesn't but does apply when he says it does.

4. Hamdi fails to provide support for the proposition that AUMF trumps FISA.
The Hamdi case narrowly held that the President has inherent authority to label citizens on the battlefields of Aghanistan "enemy combatants." This authority stems from his role in commander in chief. It is another argument altogether to say that this authority extends beyond the battlefield, beyond Afghanistan, and into the borders of the USA.

5. The President specifically tried to insert the term "in America" to the AUMF.
President Bush tried to have the AUMF apply to all of his acts to catch the 9/11 terrorists within America. Congress rejected this concept. Two conclusions result: 1) Congress never intended the AUMF to trump FISA and 2) the President knew he lacked the inherent authority to conduct warrantless wiretaps.

6. There can be no point of rational limitation if the AUMF trumps FISA.
If the President has statutory authority to conduct warrantless wiretaps due to the ambiguous language of AUMF, then it follows that the President can do whatever he wants in the name of fighting terrorism. Excessive law enforcment techniques that infringe upon the Fourth Amendment, should they be allowed, could be but the tip of the iceberg.

The majority of these arguments apply to the conservative argument that the President has statutory authority under AUMF to ignore FISA. Numbers 4 and 5 cross over and also apply to the conservative argument that the President has inherent authority under Article II of the Constitution to ignore FISA.

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