U.S. war powers denied
Published 9:00 pm Thursday, December 22, 2005
WASHINGTON – The Bush administration requested, and Congress rejected, war-making authority “in the United States” in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Tom Daschle, D-S.D., in today’s Washington Post.
Daschle’s disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency’s warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.
The Justice Department acknowledged Thursday, in a letter to Congress, that the president’s October 2001 eavesdropping order did not comply with the procedures of the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.”
Thursday’s letter, signed by Assistant Attorney General William Moschella, asserted that Congress implicitly created a new exception to the act’s warrant requirement by authorizing Bush to use military force in response to the destruction of the World Trade Center and a wing of the Pentagon. The congressional resolution of Sept. 18, 2001, formally titled “Authorization for the Use of Military Force,” made no reference to surveillance or to the president’s intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret National Security Agency operation.
Daschle’s article reveals an important new episode in the resolution’s legislative history.
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.”
