Beating a Dead Horse With a New Stick—Once More on Wiretapping

Slate's blog on legal issues.
May 23 2008 9:22 PM

Beating a Dead Horse With a New Stick—Once More on Wiretapping

The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in


are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent

reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted


of that same statute should supersede the original one. 


Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Republicans Like Scott Walker Are Building Campaigns Around Problems That Don’t Exist

How Can We Investigate Potential Dangers of Fracking Without Being Alarmist?

The Best Way to Organize Your Fridge

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter


Hidden Messages in Corporate Logos

Subtle cues from FedEx, Amazon, and others.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

A No-Brainer Approach to Fighting Poverty: Better Birth Control

  News & Politics
The World
Sept. 16 2014 11:56 AM Iran and the U.S. Are Allies Against ISIS but Aren’t Ready to Admit It Yet
Sept. 16 2014 12:22 PM Poverty Rates Falls for First Time Since 2006, Remains Way Too High
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
Sept. 16 2014 12:05 PM Slim Pickings at the Network TV Bazaar Three talented actresses in three terrible shows.
Future Tense
Sept. 16 2014 12:01 PM More Than 3 Million Told the FCC What They Think About Net Neutrality. Why Hasn't Obama?
  Health & Science
Bad Astronomy
Sept. 16 2014 7:30 AM A Galaxy of Tatooines
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.