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February 12, 2006

I Don't Get It

PLEASE: do not expect any jokes in this long, painfully sincere post

I'm confused about part of the NSA wiretapping story, and I'm hoping someone here could explain it to me. I haven't been following this closely, so it may be these questions of mine have been answered a million times before. But if anyone can tell me what's going on, I would appreciate it.

Here's what I don't get:

In Alberto Gonzales' testimony before the Senate Judiciary Committee last week, there was this exchange between him and Sen. Brownback:

BROWNBACK: Part of what we're working off of is a war declaration dated September 18th, 2001, and the war declaration on Afghanistan, and the war declaration October 16th, 2002 on the use of military force in Iraq...

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

If you read the whole thing, you'll see Gonzales was anxious to make his position clear: Congress has not declared war.


1. The official title of that Judiciary Committee hearing was:

"Wartime Executive Power and the NSA’s Surveillance Authority."

2. The Justice Department issued a long justification for the wiretapping program called "LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT." It says:

The President's exercise of his constitutional authority to conduct warrantless wartime electronic surveillance of the enemy, as confirmed and supplemented by statute in the AUMF, is fully consistent with the requirements of the Foreign Intelligence Surveillance Act ("FISA").

(The "AUMF" is Congress' September 18, 2001 "Authorization to the Use Military Force" against those responsible for 9/11.)

3. Gonzales himself said in a January 24, 2006 speech at Georgetown Law School:

We have to remember that we're talking about a wartime foreign intelligence program.

So these are my questions:

• Why was Gonzales so determined to make clear he didn't believe Congress had declared war?

• Is there some legitimate way for the Bush administration (or anyone) to claim it's "wartime" when Congress has not declared war?

Now, here are my best guesses for the answers, though given I have no idea what I'm talking about, they could be wrong:

Gonzales is adamant that Congress has not declared war because if Congress HAD, the U.S. would be legally subject to all kinds of treaty obligations that the Bush administration wants to avoid. In fact, a fuller quote from the hearings makes this clear:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice.

In particular, I assume Gonzales has the Geneva Conventions in mind. Remember, he wrote the famous memo telling Bush that Geneva "does not apply" to our conflict with Al Qaeda or the Taliban. Thus, we can set aside "Geneva's strict limitations on questioning of enemy prisoners."

Beyond that, I assume there's no legitimate way to say it's "wartime" when Congress has not declared war. Thus, the attempt by Gonzales and the Bush administration to have it both ways is complete bullshit, and would be mercilessly mocked in any country where words had meaning.

Fortunately for them, the U.S. is no longer such a place. Thus, they can claim we're not at war when it suits them, and claim we are at war when it does. And not only does no one care, barely anyone notices.

But to repeatedly repeat: I know I could be completely wrong about any of this. If you are someone who actually understands what's going on, please help. If you're someone who doesn't understand what's going on, I encourage you to simply march in lockstep with me.

(Gonzales "war declaration" quote via Glenn Greenwald.)

Posted at February 12, 2006 08:55 AM | TrackBack

Well, without running off to the law library (which is closed on Sunday) and to which I wouldn't run off to anyway, being retired, I think the following may apply.

You are right on No. 1. The Constitution gives, or used to give, I think, Congress the absolute authority to declare war, and gives to the president the authority to wage war. Two different things. If at war, treaties do bind, and Abu G probably recognizes this. After all, Harvard law must be good for at least that.

We are not at war, the congress ain't declared our romantic overseas military adventures to be war, so it is not war.

The congress has passed a a goofy resolution - how could it be otherwise, being congress - authorizing the president to act in a sort of ceasar lite kind of way and to engage in a bit of creative shooting, torturing, and assorted frivolilties in the name of protecting you and me and various ilks, witting or no.

The congressional resolution, lacking constitutional basis of any character that I can see, is itself lawless, so to speak.

But the people believe that what we are doing in the name of "self-defense" is necessary, morally and militarily justifiable. Nonsense. We are international criminals, or at least, those acting in our name are such. Bush, Cheney, the Wolf, Perle, Feith, and all the gang would be in jail, were we inclined to really believe that we are a nation of law and not of men, barring the besotted kangaroos who surely must write at least some of our laws.

So, the answer to No. 2 is a resounding NO.

Those in power simply do not believe in Constitutional or legal constraints. And the country revels in it.

From a state supreme court judge to atty. gen., Abu G and his star have risen high. Soon they will both come crashing down. Hope I'm still alive to see it.

Posted by: Jesus B. Ochoa at February 12, 2006 10:45 AM

I think they most likely want to establish a precedent of power usage not connected to war. If they can refer to the fact that they were able to use domestic warrantless spying without there officially being a war declaration in the future, it makes it that much easier to get away with whatever Orwellian spying they want to use in the future.

Posted by: Gordon Browning at February 12, 2006 11:21 AM

It's a kind of Orwellian semantic shell game, and classical conditioning, of a populace salivating for war. In early 2003 Bush demanded that Saddam let UN inspectors in Iraq to look for WMDs, and Saddam complied. Then, Bush angrily denounced Saddam for not being fully cooperative with the inspectors, then he declared war.

Then, much later, post invasion and post the recognition that there were no WMDs to be found, Bush denounced Saddam for his not having cooperated with the inspectors prior to the war. A lie, but after so much time had passed he counted on the fudge factor, on people's hazy memories, and the power of the baldness of the lie, straight from the Mein Kampf playbook.

Earlier I said that Bush declared war. Obviously he didn't, he can't. But you slip that assertion in, along with the other verbiage, and you might accept it as a power vested in the Bush presidency, or at least some people might. Gonzalez is playing the same sleight of hand game, of unpairing the conditioned and unconditioned stimuli.

First, in October of 2002, Congress gives Bush some vague but expansive authority, then Bush waits till March of 2003 to declare war. He doesn't actually declare war of course, he can't, but we go to war after the US of the Congressional authority and the CS of Bush sending America to war are decoupled temporally so they are no longer associated, and imprecise minds see it as within Bush's purview to declare war, even if they don't say so.

Likewise, Gonzalez saying Congress never declared war, eventually paired with the we're at war mantra(well, before and since Gonzalez said so, because we hear it over and over...and over), encourages those same imprecise minds to vaguely say to themselves that Congress doesn't have the authority to declare war. Not in so many words, not explicitly expressed, but the seed has been planted.

Posted by: Jonathan Versen at February 12, 2006 02:40 PM

The answer MAY be simple, and if it is, here is the simple answer:

In US jurisprudence, as perhaps best laid out in the Supreme Court case of Youngstown Steel and Tube, has generally followed this framework: the executive action will be least scrutinized by courts when in accordance with congressional authorization. Regardless of whether a formal declaration of "war" has been made, Gonzales may merely trying to make clear that Congress did indeed authorize whatever actions the executive is now taking. Perhaps Gonzales stresses this for the benefit of Senators, and the wider public audience and press, who are not constitutional scholars. Or perhaps Gonzales is simply dense, and this is one concept he really does understand and can adequately address, unlike the rest of the nutty arguments the executive is trying to make. Indeed, perhaps the cognitive dissonance is too great for him; he needs to make the occasional non-controversial point else his head may explode.

Posted by: Fidalgo at February 12, 2006 07:40 PM

Of course, these distinctions are simply rhetorical, but the ground straddled indeed allow Gonzalez and the Bush administration to have it both ways, they think, cleverly. However, these distinctions or lack thereof allow more practical applications, for instance, the participation and direct role of Navy Medicine personnel in the abusive interrogations, torture, and forced feedings while (medically) immobilized, all actions forbidden by Navy Regulations which in turn require that Navy medical personnel can only be detailed to perform medical care in accordance with the Geneva Conventions. Everyone enjoys the double standard without any of accountability. And to think Freud and the greats of psychiatry still maintain that mental illness and bad behavior in general are not infections diseases.

Posted by: rich at February 12, 2006 08:25 PM

An interesting interview of Giorgio Agamben who has done more to shed light on the schizophrenic nature of the little analyzed or understood--in it's wider implication--'State of Exception' in Western jurisprudence:

Posted by: sk at February 12, 2006 11:13 PM

I wonder if we look back at the phrasing that our war time twit uses in special circumstances, if we will find that he has been being non-war war 'clever', similar to the signing statements he makes while signing laws that the Congress has passed.

The reality is that by any definition, except the American Constitution, there is a war going on in a country that has suffered the slings and arrows. There is a country who is going further and further into physical and moral debt supporting those slings and arrows. For every hour spent on slings and arrows, there is hours not spent on making the potential 'exchangeable' products that would otherwise make the country actually grow.

So, the two sides of the equation of the non-war are suffering as if there were a war. From a War Crimes Tribunal point of view, it will have been a war nonetheless regardless of how anti-semantic they are.

Posted by: SiegeState at February 13, 2006 08:48 AM

Did you know that the phrase "blah blah blah" comes from the Spanish phrase "hablar hablar hablar" - hablar being "to talk"?

Words have meaning when they have consequences. Consequences are applied by people. So meaning is a social construction. Whether or not the Bush Gang ever gets the "fair trial" they "deserve" will depend on the actions of people who share, to some extent, the cognitive structures involved.

War, schmar. You want fries with that?

Posted by: mistah charley, ph.d. at February 14, 2006 02:43 PM

Did you know that the phrase "blah blah blah" comes from the Spanish phrase "hablar hablar hablar" - hablar being "to talk"?

I for one did not.

Though...not to appear all suspicious-like, but can you point me to some documentation for this? Merriam-Webster's etymology for "blah" is "imitative." I don't want to haul this out at one of the word-heavy parties I go to and then have people point me, snickering, to snopes.

Posted by: Jonathan Schwarz at February 15, 2006 02:09 PM