According to David , the Bush administration’s past defense of surveillance outside of the FISA process involved “Rube Goldberg-esque theories of statutory interpretation.”
Really? Looking back at the DoJ’s January 2006 White Paper (pdf) on the subject, the arguments look pretty straightforward:
1. The president’s inherent authority under Article II allows him, as executive and commander-in-chief, to disregard congressional regulation of those surveillance activities. (Pages 6-10)
2. The September 2001 AUMF authorized those activities, by authorizing the president “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”; such surveillance activities are a well-recognized incident to such a war effort. (Pages 10-17)
3. FISA itself allows for the possibility of subsequent statutory grants of authority on the subject (Pages 17-28), and if that statutory provision is ambiguous, then the president should receive the benefit of the interpretative doubt because the canons of construction call for FISA to be interpreted in a manner consistent with Article II (see Point 1 above) and in harmony with other statutes (see Point 2 above) (Pages 28-36).
Now, David, let’s call a spade a spade: Those are not complicated arguments. The Bush administration may be right or wrong on the merits (and I think I know where you stand on that point), but if those arguments are “Rube Goldberg-esque,” then Rube Goldberg really has lost his edge.
