The US is faced with an enemy which operates without soverignty. So it is, as a matter of international law, problematic as to how one might declare war - or, more optimistically, conclude a peace.

That said, the only other way of dealing with al-Qaeda would be as an international criminal organization.

However, I wonder if the President’s war powers derive from the Congressional Declaration of War or, in the event of an attack, are inherent in the President’d duty to defend the Republic and the Constitution?

Hours of legal fun for our friends down South.

I think it is more important (at least for my recreational purposes) to realize there is potential for an honest to goodness “BUSH LIED” moment here: http://www.boingboing.net/2005/12/22/moment_of_presidenti.html. If the world gives out impeachment proceedings for a lie over a BJs it would be nice to see one for a lie over the constitutional need to get warrant.

However, an act of war did occur. The obligation of the President is to defend the Republic and, in pursuit of that objective, the President does indeed have far reaching powers.

As I said earlier, I am inclined to think it would have been wiser to, even ex poste, go to secret court for warrants. And I also think the Presidents inherent and informal powers wane as we move further from 9/11. But I don’t think that the formalism of FISA should be allowed to stand in the way of the more critical objective of protecting the United States from a very real threat.

Yes, Jay, the United States was attacked on September 11, 2001 but this is not the distinction at issue. The Bush administration chose chose not to seek FISA warrants (with good reason, in my opinion) but neither did it act to change the law regarding the matter these last four years. It chose instead to do its apparently illegal work and hope nobody leaked the news. Now the news it out they are claiming hand-wavey executive authority.

To sum up: I think the FISA provisions are antiquated and should be changed; I think the US distinction in this issue is often so much hand-wringing in comparison with the more robust/arguably less civil liberties minded UK model; and I think the security services were right to use the tools at hand in pursuit of those folks who quite single-mindedly are trying to detonate nuclear devices in the United States (or just as cheerfully in Toronto).

But having said all this there are points of law that are not incidental, primarily that the President should be upholding them. Simply because his actions are sensible and in some sense reasonable does not make them legal or any less impeachable. Not that he will be, of course. The sensible and reasonable part, combined with a Republican Congressional majority, almost certainly outweighs the illegal part.

Certainly, Congress granted the President authority to use force is specific contexts and beyond that the President has broad ranging executive authority. But I would still be grateful if you might explain to me how a President can claim war powers when no declaration of war has been made.

Money quote, “the divisions we’re seeing in the debate over executive authority to authorize domestic surveillance is a function not merely of politics, but also of the paradigm through which one choses to view the authorization itself. Those who are committed to the civil / criminal paradigm—while in some cases conceding that the President probably has the Constitutional authority to authorize wiretaps —nevertheless seem to believe, with profs Jonathan Turley and Orin Kerr, that it is likely the President has admitted to committing a federal crime (which, to some particularly rabid partisans, rises to the level of an impeachable offense). Those, however, who are committed to the wartime / military paradigm believe, along with AG Gonzales and prof Paul Rothstein, that the President’s actions were both Constitutionally and statutorily permissible , that FISA was (theoretically, at least) inapposite, and that the bipartisan resolution authorizing the use of force against al Qaeda—tantamount to a declaration of war—gives the President the war time powers that allow him to circumvent certain FISA requirements”

I’m guessing I am on the wartime/military page whereas Alan is looking at the question through the civil/criminal lens.

Having read through a number of the legal blogs in the States I would say Bush was on shakey legal ground. However, when it comes to a technical violation of FISA versus the war powers of the POTUS with a Congressional resolution backing him up and briefings to the oversight committees, I am not at all sure a judge would rule this a felony. Prima facie it almost certainly is; the question is whether the inherent power of the President in time of war will save him.

Slippery slopes indeed Kevin. Icy in places. And absolutely sheer if the Bushies were tapping individuals who merely dissented from the bush policy rather than were actively engaged in war against the United States. I’d be the first to push Bush off that particular cliff. But I can’t get very excited by ECHELON intercepts being read by American agents rather than American computers or Canadian or British agents. Sorry, I just can’t.

http://gayorbit.net/?p=3866

http://www.boingboing.net/2005/12/19/big_controversy_over.html

Isn’t there also a cumulative effect that is going to assist in the backlash sooner or later? Or is it all “fog of war”?

[Note: asking and not accusing]

greater.