Signals intelligence and George W. Bush's overreach

Attorney General Alberto Gonzales wrote in today's Wall Street Journal that the Authorization for Use of Military Force after September 11 granted the president the ability to use signals intelligence to conduct extensive and unfettered surveillance of people in the United States.

The AUMF, in our abbreviation crazy world, cites the War Powers Act of 1973. B2 of the AUMF in fact states that:

Nothing in this resolution supercedes any requirement of the War Powers Resolution.

B1 issues the "SPECIFIC STATUTORY AUTHORIZATION" and states:

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.

5B of the War Resolution states:

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.

Under the signals intelligence logic, President Bush was authorized to expand the use of the NSA for a period of two months -- just like he would be authorized to dispatch troops in an emergency response.

However, Congress did not enact a specific authorization for such use of United States Armed Forces nor did it extend by law such sixty-day period, nor was it physically unable to meet as a result of an armed attack upon the United States. The Bush administration consulted -- with a limited and disputed amount of detail -- a handful of legislators.

Alberto Gonzales asks his Wall Street readers to approach this from both the legal "and" a commonsense mindsets -- whenever a lawyer uses "and" or "or" pay attention. He states that:

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies.

It is inconceivable to assert that the AUMF grants anything but limited power to the president, requiring Congressional oversight and approval in written law. FISA, or an augmented FISA, and the ability to expand military action for a few months were the legal options available to the president.

The options that the administration selected were not, however, legal.