Will The AUMF Be Bush’s Saving Grace In Wiretap Scandal?
The AUMF, or authorization for the use of military force, gave Bush the right to use whatever force he deemed necessary to fight any country or organization in the War on Terrorism.
For a moment, let’s set aside the fact that the War on Terrorism is essentially a war on a tactic, and instead focus on the AUMF as University of Chicago law professor Cass Sunstein sees it:
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants — notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court’s view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of “all necessary and appropriate force,” also authorizes surveillance of those associated with Al Qaeda or any other organizations that “planned, authorized, committed, or aided the terrorist attacks” of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President’s wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates — as indeed he has said — then the Attorney General’s argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
I agree with the professor’s overall thoughts, including the nature of who can be wiretapped legally and who can’t. After all, it IS the law.
And yes, there needs to be a distinction made between traditional wiretapping during war time and what Bush has done. Wiretaps were okayed, without retroactive warrants, for spying on people within this country who have absolutely no ties to any terrorist or terrorist organizations. The AUMF does not allow this type of behavior and it seems like this is what has transpired. Of course, you’ll probably hear (and probably already have heard) many talk about how Bush has absolute authority to spy on whomever he pleases given the sweeping nature of the WOT. Well, that’s just not true. Plain and simple, it’s false. There are limits and from what I’ve read so far, Bush overstepped them.
We’ll find out more in the coming days and weeks about what has gone down in the name of protecting our nation, but in the meantime definitely read the post I found this link: New Sisyphus.