PRES. BUSH TOLD A LOCAL AUDIENCE at Kansas State University that his authorization of wiretapping against Americans without search warrants is both legal and necessary.

Arguing that his administration had repeatedly informed congressional leaders about the NSA program, the president said, "If I wanted to break the law, why was I briefing Congress?"

Bush offered his lengthiest public explanation of what the administration has taken to calling the "terrorist surveillance program" since it was revealed last month, much to his dismay.

Referring approvingly to a 2004 Supreme Court case, he told an audience here: "I'm not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It said, 'Mr. President, you've got the power to protect us, but we're not going to tell you how.'"

The court said that the resolution Congress passed shortly after the Sept. 11 attacks granting Bush the authority to use whatever force necessary to protect the nation from terrorism gave him, as commander in chief, the power to hold prisoners who were captured on the battlefield in Afghanistan.

Here is the complete text of the Authorization for the Use of Military Force (AUMF):

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it


Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

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.


Approved September 18, 2001.

I don't see anything in there that allows the President of the United States to spy on Americans' phone and e-mail communications without a search warrant. Neither did Jack Balkin, when he wrote back in mid-December that the claim that the AUMF authorized warrantless wiretapping "doesn't pass the laugh test."

...it is simply inconceivable that any member of Congress, let alone a majority, intended by voting for the AUMF to allow circumvention of the FISA-court approval mechanism as to the wiretapping of communications involving U.S. persons. (If the AUMF had authorized such interceptions, why did the Administration seek and receive amendments to FISA in the PATRIOT Act? Why, in 2003, did the Justice Department draft further amendments to FISA -- including to section 1802 in particular -- without mentioning the surgery that had been performed by the AUMF, and why in that draft is the "U.S. person" limitation accurately described as if it had not been amended?)

An excellent question. Here is the limitation to which Jack refers:

50 U.S.C. § 1802 allows the Attorney General to authorize electronic surveillance for up to a year, without the FISA Court's prior approval, in two narrow circumstances: (1) if the surveillance is are directed solely at communications between foreign powers; or (2) if the surveillance is directed solely at the acquisition of technical intelligence, other than spoken communications, from property under the exclusive control of a foreign power. In addition, the Attorney General must certify that there is no substantial likelihood that such surveillance will acquire the communications of U.S. persons. (In essence, § 1802 authorizes the surveillance of communications between foreign governments, and between a foreign government and its embassy.) Section 1802 is of limited use, however, because it explicitly prohibits efforts to acquire spoken communications. ...

In fact, the only specific action authorized by the September 18 resolution is "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States."

So where are the strict constructionists who will defend Congress from the Bush administration's attempts to legislate from the Oval Office?

As for "informing congressional leaders about the NSA program," what that amounted to was briefing a handful of senior members of Congress whose concerns were not taken seriously by the Bush administration and who were barred from making their concerns known to the rest of Congress or the public because the information was classified. I share Cathy Young's feeling that this does not constitute meaningful legislative oversight.

Meanwhile, Gen. Michael Hayden, a high-ranking intelligence officer at the Office of National Intelligence, strongly hinted at the real reason for Bush's decision to bypass the courts and allow the NSA to wiretap Americans without search warrants.

Inherent foreign intelligence value is one of the metrics we must use. Let me repeat that: Inherent foreign intelligence value is one of the metrics we must use to ensure that we conform to the Fourth Amendment's reasonable standard when it comes to protecting the privacy of these kinds of people. If the U.S. person information isn't relevant, the data is suppressed. It's a technical term we use; we call it "minimized." The individual is not even mentioned. Or if he or she is, he or she is referred to as "U.S. Person Number One" or "U.S. Person Number Two." Now, inherent intelligence value. If the U.S. person is actually the named terrorist, well, that could be a different matter. The standard by which we decided that, the standard of what was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly.

Here is the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So "reasonableness" is NOT the standard for allowing search and seizure. It's what a search and seizure has to be in order to pass constitutional muster. What constitutes a "reasonable" search and seizure? Probable cause. Probable cause is the standard for judging whether a search and seizure is reasonable.

Why would Hayden ignore the requirement to prove that there is probable cause to believe a search and seizure is reasonable?

Glenn Greenwald thinks it's because a good number of the Bush administration's wiretap requests fell short of the probable cause standard; and the Bush administration wanted a weaker standard.

I don't agree, though, that Gen. Hayden "claim[ed]" that "the 'probable cause' standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop)," and that this is why the Bushies decided to spy on Americans without warrants. The closest he came to a straightforward claim was this:

You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

What Hayden actually did was much less honest than a "claim" would have been. Hayden never said that the Bush administration wanted to substitute a "reasonable suspicion" standard for the constitutionally required "probable cause" standard. Rather, he simply spoke about the Fourth Amendment as though the words "probable cause" did not exist.

Take a look at Hayden's response to Jonathan Landay of Knight-Ridder during the question-and-answer period at the end of Hayden's speech:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

There you have it. When specifically challenged by a reporter (not surprisingly, a Knight-Ridder reporter) to say whether the Bush administration wanted to get around the "probable cause" standard of proof for getting a wiretap warrant, he denied it. He said no, we're not trying to get around anything; the Fourth Amendment standard is "reasonable," not "probable cause."

This kind of flat-out bald-faced lie (that the Fourth Amendment's standard is not probable cause) bothers me much more than if Hayden had said honestly that they wanted to get around the standard. With the text of the Fourth Amendment available to anyone with an Internet connection or a library card, the man actually insists that the words "probable cause" are not even in it.