Why domestic spying isn’t covered by the authorization to fight terrorism
George W Bush and members of his administration like to say that the president was authorized to spy on American citizens as a part of Congress's authorization to fight terrorism after the 9/11 attacks. He says that espionage is a part of warfare and always has been. Attorney General Gonzales even claimed that George Washington, Abraham Lincoln, and Franklin Roosevelt engaged in electronic surveillance (You fool! The washingtonograph has been a secret for 250 years!).
First, spying has always been recognized as distinct from warfare. Even the terms "electronic surveillance" and "military force" are complete opposites in any semantic sense.
But the most obvious evidence in the historical treatment of enemy soldiers and enemy spies.
Soldiers v. spies
If you capture a person carrying a rifle, who has been shooting at you, trying to blow you up, and he is wearing an enemy uniform, what do you do with him? You send him to a POW camp.
If you capture a person with no weapon, who has not been trying shoot you or blow you up, who is not wearing an enemy uniform but who is carrying secret documents recording your position and strength, what do you do with him? You send him to the gallows.
Spying has always been considered a hanging offense in wartime, while merely fighting the war has not. They are fundamentally different. This is what Congress authorized:
That the President is authorized to use all necessary and appropriate 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. [emphasis mine]
In plain English: The president can use force against anyone he finds was directly involved in the 9/11 attacks in order to prevent future terrorist attacks against the US.
By any sane definition, "force" does not include "spying." Perhaps if Bush renamed the NSA the "US Espionage Force" he would have a leg to stand on. Believe me, if the Bushies were prevented from using military force, they would be screaming about how "surveillance" is distinct from "force."
Moreover, since it is specifically limited to those directly involved in the 9/11 attacks, the authorization not only disallows force against Americans (none of whom are known to have been involved) but even disallows the use of force against known terrorists who are not al-Qaeda, such as US militias and even Hamas.
Don't know much about history
But we have always spied on our enemies, right? Of course. And we should be spying on foreign terrorists just as we spied on the Soviets. But the president didn't need Congressional authority to spy on our enemies abroad; that's the whole job of the CIA, NSA, and military intelligence all along. That's their ongoing mandate.
But these organizations never had the authority to spy on Americans, especially not without a court order, the way the FBI or any domestic police organization would do it. Claiming that Congress somehow implicitly gave him the authority to circumvent FISA (the Foreign Intelligence Surveillance Act) when they authorized "military force" is ridiculous, especially since members of Congress are today saying explicitly that they did no such thing (and the administration even tried to shoehorn into the legislation a reference to "in the United States" as well as abroad).
But what about Washington, Lincoln, and Roosevelt?
Of course presidents spied on Americans in the old days. FISA was created in part specifically because of the abuses of domestic spying committed by Nixon, FDR, and Lincoln. Washington spied on tories before there was a Constitution, so he had nothing to abuse.
It is telling that the attorney general would trot out some of the most egregious abuses of presidential power as a means of justifying new abuses. It is as if he is saying: look, we can ignore the Freedom of Information Act (FOIA) because Warren G Harding sure as hell didn't give away declassified government documents to anyone who asked. Or, we can ignore the McCain anti-torture law because Andrew Jackson tortured Indians whenever he felt like it.
Actually, that one is a little scary, given Bush's signing statement.
Anyway, an argument that specious makes Gonzales a hack. And it makes the president a deeply flawed leader.
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