Last week, we learned that the Bush Administration had engaged in widespread domestic eavesdropping in clear violation of US law. The administration's defence was (predicatably) to cry "9/11!". According to a letter from the Justice Department to the House and Senate intelligence committees, authority to violate US law and conduct warrantless wiretapping on US domestic phone and email conversations was implicit in the Authorization for the Use of Military Force approved by Congress just days after September 11th. The state of war was a blank cheque.
Unfortunately for the Bush Administration, there's a little problem: According to former Senate majority leader Tom Daschle, Congress explicitly rejected granting the President war authority within the United States:
As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.
"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
Daschle wrote that Congress also rejected draft language from the White House that would have authorized the use of force to "deter and pre-empt any future acts of terrorism or aggression against the United States," not only against those responsible for the Sept. 11 attacks.
It seems that that state of war wasn't a bank cheque after all...
This is important because, as Salon's David Cole pointed out in his article on Youngstown Sheet & Tube Co. v. Sawyer, the courts do pay attention to the will of Congress in war powers cases:
In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.
In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing Truman's action in the third of Justice Jackson's categories.
Given the explicit rejection of war authority within the US, it seems certain that Bush's wiretapping scheme will fall into the same category.