The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.
Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.
The Justice Department acknowledged yesterday, in a letter to Congress, that the president's October 2001 eavesdropping order did not comply with "the 'procedures' of" the law that has regulated domestic espionage since 1978. The Foreign Intelligence Surveillance Act, or FISA, established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, "except as authorized by statute."
... The congressional resolution of Sept. 18, 2001, formally titled "Authorization for the Use of Military Force," made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.
I'll explain why I added the emphasis to the date above in just a moment. As Daschle explains:
The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.
If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.
The same day that joint resolution passed in Congress -- September 18, 2001, and a resolution changed at the last minute by Daschle to prevent Bush from declaring war on Americans in the name of terror -- that same day, Americans were targeted in a domestic terrorist attack.
Letters laced with anthrax were dropped in mailboxes around the country. One originally thought to be postmarked 9/18/01 was addressed to Tom Daschle (scroll down to just above "Elsewhere Monday"). This letter was actually mailed in early October. Here's some images of anthrax letters.
That was a heckuva job on that investigation, wasn't it?
(Special thanks goes to bettyellen and Syrinx for their research.)