The Dissembling Continues

If I can understand correctly, a major point by the Administration's apologists on the whole illegal spying issue is that the President was given the authority to do this in the Authorization to Use Military Force law of September 14, 2001. The law gave the President power to use force against Al Qaeda. He says it gave him the power to do anything he basically wants, so long as it has the fig leaf of defending America against terrorists.

This is not the actual law, but an administration wish list of what they wanted the law to say. We know this because Tom Daschle tells all in the Washington Post today:

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. 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. 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.

Then, after they couldn't get the authority to act against American citizens, they went ahead and authorized it in secret, notified Congress that they were doing it, and made it a crime against national security - literally, a crime - if those members informed the public about it.

Meanwhile, Glenn Greenwald (who;s been great on this issue) cuts through the bullshit:

There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

This is exactly the kind of "get out of the weeds" thinking I've advocated from the outset. The Right will try to obfuscate and talk about the inherent powers of Article II of the Constitution, or rulings like U.S. v. Truong, in order to make their case. But they never explain how executive orders can override explicit Congressional laws. That's because they can't. And if the White House is saying they can, we continue to have a full-blown Constitutional crisis that needs to be resolved. And soon.