Nice Try, Al.

OK, so, I'm not a law-school graduate, much less the confirmed Attorney General of the United States. Still, when I heard that Mr. Gonzales was asserting that the power to wiretap Americans was granted under the resolution passed in response to 9/11, I was skeptical.

With Democrats and Republicans alike questioning whether President Bush had the legal authority to approve the program, Attorney General Alberto Gonzales argued that Congress had essentially given Bush broad powers to order the domestic surveillance after the Sept. 11, 2001 attacks.

"Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority," said Gonzales. He called the monitoring "probably the most classified program that exists in the United States government."

I've previously complained about the broad language in that resolution, passed in a panic days after the planes hit the towers. Still, it seemed that it might be worth a layman's actually looking at the text, instead of just taking the Attorney General's word for it. (Frankly, I just don't trust him.)

The Authorization for Use of Military Force says:

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

That's it. Seems pretty straightforward, and has no language saying anything specific about wiretaps. Essentially it said, "get whoever it was who did this to us, before they do it again!"

Perhaps you could argue that the NSA intercepts were "necessary and appropriate force", but I think you'd have some disputes about that. And let's look at who the force is to be directed against: those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Notice the past tense. Notice the localization to the 9/11 attacks.

Notice that it doesn't just say "That the President is authorized to use all necessary and appropriate force in order to prevent any future acts of international terrorism against the United States."

It could be argued that al Qaeda was involved in 9/11, and so force "necessary and appropriate" to prevent that specific organization from future acts is authorized.
But, to my reading, this resolution doesn't apply to a brand-new organization, say, Bob's Terrorists R Us, that had nothing to do with 9/11, and it certainly doesn't apply to US citizens who were not part of 9/11 or al Qaeda. The adminstration gets a break here, since al Qaeda doesn't have membership cards, but I don't see any authorization for broad data-mining operations that will inevitably pick up persons not affiliated with al Qaeda or the attacks of 9/11. So, even if wiretapping is "necessary and appropriate force" there is a limit on where it can be applied.

And then, there's subsection (b).

The War Powers Resolution was considerably more complicated than the one following 9/11, but it's still seems readable by an intelligent lay person. Section 8(a)(1) is a provision making it painfully clear that the President isn't allowed to construe anything passed by Congress as authorization to put the Armed Forces into harm's way unless it has language specifically authorizing it, and language saying that it means that language to specifically authorize it. Congress pretty clearly didn't want a President reading authorization into language it didn't intend as authorization.

So, OK, the 9/14 resolution does have such language. But wait! What's that part about "within the meaning of section 5(b) of the War Powers Resolution?"

Section 5(b) of the War Powers Resolution reads:

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

As I say, it's more complicated. But, if you plow through it, it pretty clearly puts a time limit on how long the President can use the Armed Forces without checking back with Congress.

I'm not going to spend more research time on checking, but I'm confidant that Congress has not declared war, and is not physically unable to meet as a result of an armed attack upon the United States. And it's been a lot longer than 90 days. One would have to check the language of the bills authorizing continued deployments in Afhanistan and Iraq, and I don't have Mr. Gonzales' interns to do the research, but I'm going to guess they didn't include language about wiretaps.

So, there's no "black letter law" in the resolution after 9/11 that authorizes an exception to FISA. And, even if you agree with the interpretation that the eavesdropping was both necessary and appropriate as a use of force, there are clear limitations on who that force could be used against, and clear requirements for Congressional reauthorization. This is nowhere near as obvious or clear as Mr. Gonzales would have us believe.

But don't take my word for it. Ask Senator Feingold:

Sen. Russell Feingold (D-Wis) responded to Gonzales' comments in an NBC interview this morning. "This is just an outrageous power grab," he said. "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States. "There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. "The president has, I think, made up a law that we never passed," said Sen. Russell Feingold (D-Wis.)