The Right Coast

December 19, 2005
Kerr on the NSA Domestic Surveillance Program
By Mike Rappaport

Orin Kerr has an extremely informative and impressive posting on the Bush Administration's surveillance without court approval of communications from outside the US to people within the US. Many of the issues are beyond my competence and I learned a lot from his discussion.

In my opinion, the analysis made a mistep when Orin concluded that Congress's authorization to use military force "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." If the President is attempting to prevent Al Quaeda from engaging in additional terrorism by screening phone calls, that strikes me as within this authorization. Surveillance of the enemy is part of war.

Nonetheless, if you are interested in these issues, take a look a Orin's post. I believe virtually all readers will learn something from it.

Update: Cass Sunstein develops this point:

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.
Further Update: I now see that Tom had also weighed in on Orin's post. Given Tom and Cass's posts, I do think that Orin has some rethinking to do about the authorization argument.