Just in case there is any doubt as to what the President's claims to executive power mean for the future of democracy, go read Balkinization:
The President's view is that because he is fighting a war against terrorist organizations, any persons that he believes are allied with those organizations against whom country is fighting should be treated according to the rules that apply to war, and not to the rules that apply to the U.S. citizens generally (including but not limited to the protections of the Bill of Rights). According to the President, Congress has authorized intelligence gathering against enemy soldiers, which includes electronic surveillance, and even if Congress did not authorize it, as Commander-in-Chief he has authority to engage in such surveillance as a reasonable incident of prosecuting the war against Al-Qaeda.
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The problem is not that Administration has suddenly changed its theory of its own power and is now making unreasonable assertions. Rather, the problem is that the President's argument about his own power has always been unreasonable; the latest admissions simply show us where this argument leads.
The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.
The President argues that the AUMF has authorized him to do this, but the AUMF does not say that the President can disregard laws like FISA specifically designed to protect U.S. citizens (and persons living within the U.S.) from executive overreach. FISA is a far more specific statutory scheme than the AUMF, and we should not assume without a far clearer statement that Congress meant to give the President a blank check to elmiminate laws that restrain executive overreaching and protect the civil liberites of Americans. Nor can the AUMF permit the President to violate constitutional guarantees of Due Process or other constitutional protections.
The President's other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President's wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.
Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.
This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.
For the life of me, I don't understand why the American public isn't flooding the streets in outrage over this power grab. Either they don't understand it, or they don't care. I'm betting on the first, the solution to which is a relentless campaign of publicization and education.
Hat tip to Atrios.