Questioning the “How”
George W. Bush had something interesting to say in an interview in today’s Wall Street Journal with Paul A. Gigot:
But this is a different kind of war. In the past, there was troop movements [sic], or, you know, people could report the sinking of a ship. This is a war that requires intelligence and interrogation within the law from people who know what’s happening…. Victories you can’t see.
Emphasis mine. The big question is whether or not “within the law” is meant to apply to “intelligence” and “interrogation,” or just “interrogation.” If Bush indeed did mean “intelligence within the law,” it is a definitely “gotcha” moment. The administration’s policy and its legal arguments have been such that the permissibility of intelligence gathering does not hinge on what the law says, but rather on what is necessary to pursue the war on terror.
Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
Alberto Gonzales, December 2005
The AUMF (Authorization for Use of Military Force — 2001/09/18) does not contain such an authorization, either explicitly or implicitly. The Bush Administration seems to think that the AUMF constitutes a blank check, the ability to ignore things like FISA if it’ll help the war on terror.
The administration’s response to lawsuits testing the legality of their actions has been “we don’t have to tell you why we’re allowed to do it, it’s a secret.” Sadly, I’m not exaggerating. They’ve claimed that proving the legality of their actions would involve revealing state secrets, and thus the cases should be dismissed. Three judges in three separate lawsuits have already shot down that ploy, and a fourth judge in a fourth lawsuit has expressed much doubt over the soundness of such an argument. One of the judges dismissing the government’s “state secrets” argument was Chief Judge Vaughn Walker, who was nominated by President George H. W. Bush in 1989 (was first nominated by President Reagan), and is described as a conservative in the legal community.
It might be time for some of the blind Bush-backers to start questioning the “how” of the war on terror.
