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Perfectly legal, Gonzales explains Down the Rabbit HoleBy Rick Horowitz
Let's see if
I can boil it down for you: The longer version is pretty amazing, too: Once upon a time, Congress passed a statute. From now on, this statute said, the only way anyone can carry out electronic surveillance within the United States is with the permission of a special court. Congress amended the statute over the years to make it more flexible and even more responsive, but the prohibition stayed in place: no domestic surveillance without the permission of a special court. This doesn't mean what you think it means. That's because, among its various provisions, the law says that electronic surveillance can't occur "except as authorized by statute," which might just possibly mean (if you twist the language far enough) that the original law, called the Foreign Intelligence Surveillance Act, wasn't the final word at all, but "contemplated" being "complemented" by other, future laws. And like a whooping crane in search of a mate, off went lonely little FISA, scouring the world year after year for just the right "complement." Until finally, decades later, it found it. In a proclamation for National Nurses Month? Don't be silly -- in a resolution authorizing the use of force in Afghanistan. An odd match, you might think, considering that the resolution authorizing the use of force in Afghanistan said nothing at all about surveillance within the United States. But of course, Congress doesn't always spell out every little thing in perfect detail, so sometimes a commander in chief has to read between the lines. And since the resolution authorized the use of "all necessary and appropriate force" against al-Qaeda in Afghanistan, then naturally it also permitted the administration to spy on people, without the court's permission, right here in the U.S.A. Even though it didn't say any such thing. Even though the people who voted for it never intended any such thing. But it's only logical, isn't it? If you allow our soldiers to shoot at the enemy, then certainly you wouldn't prevent our wiretappers from listening in on the enemy's phone calls, right? Or on anybody they think might be the enemy? Or on anybody who might be talking to the enemy? It's only logical. And who needs a special court? (And if it had been the proclamation for National Nurses Month? Our attorney general would have smiled that little smile of his and said, "Well, since we already allow nurses to stick their thermometers into a patient's mouth, then it's certainly less of an intrusion to listen to...") You still with me? Great. Anyway, since the Supreme Court once said that it's OK to detain an American citizen as an "enemy combatant" on a battlefield in Afghanistan even though the use-of-force resolution didn't mention this specific situation, then naturally it's just as OK, even though the use-of-force resolution didn't mention this situation either, to listen in on the phone calls of Americans here at home. You don't see this many bootstraps at a shoemakers convention. Now, this isn't the only way to read the two laws, our attorney general concedes. (Another way to read them might be in English.) But it's a "fairly possible" reading, he says, and since it's a "fairly possible" reading, and since reading it that way might raise a constitutional conflict between the use-of-force resolution and FISA -- well, the only thing to do is to reread FISA to avoid the conflict. To reread FISA so that its restrictions on domestic spying comply with the use-of-force resolution! Which doesn't say a word about domestic spying. But wait -- there's more. Because even if you don't like the "fairly possible" reading, it doesn't matter. The president as commander in chief has "inherent authority" from the Constitution, which isn't the same as "exclusive authority," because, after all, Congress has authority from the Constitution, too -- it's just never quite as much authority as the president has. So the president still wins. The president always wins. Did I mention that the president is commander in chief? Posted 2/7/06. Rick
helps words make sense -- tell your friends!
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Rick Horowitz
