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A Closer Look: Senate Joint Resolution

Thursday, December 29, 2005

In the last week I've read just about everything I can related to the revelation of the President authorizing the National Security Agency to eavesdrop on communications illegally. Someone at the NSA realized that spying on American communications without a court order was illegal, so they leaked it to the press. The New York Times eventually reported it. I say "eventually", because (as reported in their own article) the Bush administration asked them to put a hold on going public with the story for about a year. In the aftermath of the story's release, the Bush administration has been working tirelessly to justify their assertion that their spying was legal and was authorized by Congress. Congress, on the other hand, has refuted this position. Attorney General Alberto Gonzales said in a White House briefing that Congress had essentially given President Bush the authority for domestic surveillance after the September 11 attacks. Mr. Gonzales asserts that somewhere in Senate Joint Resolution 23, Authorization for Use of Military Force, there exists the authority for the President to commence unwarranted domestic spying.
 
When I first read his comments, I was shocked. How could it be possible for the Congress to authorize the President to eavesdrop on conversations within the United States? Congress has never possessed the authority to authorize this type of warrantless domestic surveillance. I decided that a closer inspection of all the details concerning these matters was in order so that I could more fully understand what was happening. To best frame what has transpired, we need to go back to September of 2001 and look at what was happening in our country with respect to the Congress and the President. On the 11th of September, terrorists commandeered airplanes and flew them, save one, into American assets. As a result, American lives were lost. Action was called for to bring those responsible for these acts to justice (and rightly so). On September 14, the President declared a state of emergency, citing the events of the 11th of September. On the 18th of September, the President signed Senate Joint Resolution 23, Authorization for Use of Military Force. Lets stop there as any further history will not serve any useful purpose to our discussion.
 
Lets look a little closer first at the Declaration of National Emergency, then at the Authorization of Military Force.

Declaration of National Emergency by Reason Of Certain Terrorist Attacks
By the President of the United States of America
A Proclamation

     A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

     NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes:  sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code.

     This proclamation immediately shall be published in the Federal Register or disseminated through the Emergency Federal Register, and transmitted to the Congress.

     This proclamation is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

     IN WITNESS WHEREOF, I have hereunto set my hand this        fourteenth day of September, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.

                               GEORGE W. BUSH

                                 # # #

We can go to the Cornell Law School website and look up the statutes cited in this Declaration of National Emergency. When we do this, the intent of the declaration becomes obvious. Listed below are the titles related to each section:
(Suspended sections included for completeness:)
10USC12302: READY RESERVE
As anyone can plainly see, those sections listed above generally have to do with mustering, maintaining, and financing the armed forces for the protection and defense of our country. The President declared this National Emergency to aid him in putting together an armed force to protect our country and to go after the terrorists.
 
Lets look now at the Authorization for Use of Military Force the President signed on the 18th of September. According to the Attorney General, this is allegedly part of what gives the President his authority to conduct unwarranted eavesdropping on American citizens.

President Signs Authorization for Use of Military Force bill
Statement by the President

     Today I am signing Senate Joint Resolution 23, the "Authorization for Use of Military Force."

     On September 11, 2001, terrorists committed treacherous and horrific acts of violence against innocent Americans and individuals from other countries.  Civilized nations and people around the world have expressed outrage at, and have unequivocally condemned, these attacks.  Those who plan, authorize, commit, or aid terrorist attacks against the United States and its interests -- including those who harbor terrorists -- threaten the national security of the United States.  It is, therefore, necessary and appropriate that the United States exercise its rights to defend itself and protect United States citizens both at home and abroad.

      In adopting this resolution in response to the latest terrorist acts committed against the United States and the continuing threat to the United States and its citizens from terrorist activities, both Houses of Congress have acted wisely, decisively, and in the finest traditions of our country.  I thank the leadership of both Houses for their role in expeditiously passing this historic joint resolution.  I have had the benefit of meaningful consultations with members of the Congress since the attacks of September 11, 2001, and I will continue to consult closely with them as our Nation responds to this threat to our peace and security.

      Senate Joint Resolution 23 recognizes the seriousness of the terrorist threat to our Nation and the authority of the President under the Constitution to take action to deter and prevent acts of terrorism against the United States.  In signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution.

      Our whole Nation is unalterably committed to a direct, forceful, and comprehensive response to these terrorist attacks and the scourge of terrorism directed against the United States and its interests.

                                 GEORGE W. BUSH

                                 THE WHITE HOUSE,

                                 September 18, 2001.

# # #

This statement by the President refers to Senate Joint Resolution 23, Authorization for Use of Military Force, but it doesn't actually state what that resolution says. To remedy this shortcoming, I'll reprint the resolution (with citations) for you below. But first, I want to highlight a comment the President made in his statement. He said, "In signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution." The President acknowledges the following facts:
  • the term force, as used in SJR23, indicates a "body (as of troops or ships) assigned to a military purpose", because the President qualified the term force in his statement by saying, "force, including the Armed Forces of the United States",
  • whatever actions he undertakes with the Military Forces, he must always be within the boundaries placed upon him by our Constitution,
  • he is also bound to the rules of the War Powers Resolution.
We'll look at each of these as we go along. Now to the Senate Joint Resolution:
Authorization for Use of Military Force (Enrolled as Agreed to or Passed by Both House and Senate)

--S.J.Res.23--

S.J.Res.23

One Hundred Seventh Congress

of the

United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Wednesday,

the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This joint resolution may be cited as the 'Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    (b) War Powers Resolution Requirements-

      (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution [50 U.S.C. 1547 (a)(1)], the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution [50 U.S.C. 1544 (b)].

      (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution [50 U.S.C. 1541 et seq.].

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

 
Some notes of construction must be clarified before we continue. When you read the above "Whereas" statements, they have no legal force in law. They're as useful as window dressing. The only legally operative language in the Senate Joint Resolution follows the sentence: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled..." Also, when we are trying to understand what Congress wanted to accomplish when it passed a bill or resolution, we can go back to their debates to see what was said about the various sections, etc. This is important for us to do when making a determination of their original intentions. This is what happens when a question of "constitutionality" arises. Courts often refer to The Federalist Papers, The Anti-Federalist Papers, and the Constitutional Debates that occurred at the Constitutional Convention of 1787 in Philadelphia.
 
Section 2, above, sites three sections of the United States Code for "specific statutory authorization" to fulfill their War Powers Resolution requirements. I'll list them below:
50USC1547(a)(1)
(a) Inferences from any law or treaty
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
(1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.
 
50USC1544(b)
(b) Termination of use of United States Armed Forces; exceptions; extension period
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
 
50USC1541
(a) Congressional declaration
It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Congressional legislative power under necessary and proper clause
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.
(c) Presidential executive power as Commander-in-Chief; limitation
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
After reading all the information I've provided, one can hardly draw any other conclusion than that the intent of Congress was to authorize the President to introduce the United States Armed Forces into hostilities. To more clearly illustrate my point, we can see from the citations above:
50USC1547(a) says, "Authority to introduce United States Armed Forces into hostilities..."
50USC1547(a)(1) says, "...specifically authorizes the introduction of United States Armed Forces into hostilities..."
50USC1544(b) says, "...the President shall terminate any use of United States Armed Forces..."
50USC1544(b)(1) says, "...a specific authorization for such use of United States Armed Forces..."
50USC1541(a) says, "...the introduction of United States Armed Forces into hostilities..."
50USC1541(c) says, "The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities..."
The intent of the War Powers Resolutions was to set down clear and specific guidelines for Congress and the President when introducing United States Armed Forces into hostilities. I believe what Attorney General Alberto Gonzales and assistant attorney general for Congressional Affairs William Moschella are claiming is that Congress authorized the President to "use all necessary and appropriate force (i.e. energy brought to bear)" when, in fact, they hadn't. For one thing, it is not the job of the executive branch to interpret the laws. Their job is to enforce them. If there is a question about the intentions of Congress, they can ask Congress. If they really need clarification, the judiciary can be called upon to sort things out. Secondly, I believe Alberto Gonzales is bending definitions to facilitate a power-grab for the President. Let me illustrate what I mean. We need to deconstruct the sentence, "the President is authorized to use all necessary and appropriate force".
 
The argument being put forth is that the President has been authorized [by Congress] to use all force. Fine. What type of force? Well, from the resolution we can see that Congress qualified the word force with necessary and appropriate. Let's go ahead and define these three words using Merriam-Webster's Online Dictionary (because they're not already defined in law as it pertains to Title 50, Chapter 33--War Powers Resolutions):
Function: adjective
1 a : of an inevitable nature : INESCAPABLE b (1) : logically unavoidable (2) : that cannot be denied without contradiction c : determined or produced by the previous condition of things d : COMPULSORY
2 : absolutely needed : REQUIRED
 
Function: adjective
: especially suitable or compatible : FITTING
 
Function: noun
1 a (1) : strength or energy exerted or brought to bear : cause of motion or change : active power <the forces of nature> <the motivating force in her life> (2) usually capitalized -- used with a number to indicate the strength of the wind according to the Beaufort scale <a Force 10 hurricane> b : moral or mental strength c : capacity to persuade or convince <the force of the argument>
2 a : military strength b (1) : a body (as of troops or ships) assigned to a military purpose (2) plural : the whole military strength (as of a nation) c : a body of persons or things available for a particular end <a labor force> <the missile force> d : an individual or group having the power of effective action <join forces to prevent violence> <a force in politics> e often capitalized : POLICE FORCE -- usually used with the
3 : violence, compulsion, or constraint exerted upon or against a person or thing
4 a : an agency or influence that if applied to a free body results chiefly in an acceleration of the body and sometimes in elastic deformation and other effects b : any of the natural influences (as electromagnetism, gravity, the strong force, and the weak force) that exist especially between particles and determine the structure of the universe
5 : the quality of conveying impressions intensely in writing or speech
In my opinion, the Congress did not do its job when it passed this resolution because there are so many different ways the plain language could be misconstrued. And that is exactly what is happening. The word force can represent any of five different definitions and the complexion of SJR23 changes on each different use of the word. Did the Congress intend to allow the President to use all necessary and appropriate [available bodies of persons or things for a particular end <a labor force>]? Or, did they intend that the President was authorized to use all appropriate and necessary [violence exerted upon or against] the terrorists? Or, maybe he was authorized to use all necessary and appropriate [...natural influences (such as electromagnetism, gravity, the strong force, and the weak force)]? I believe that Congress intended the following: "(a) IN GENERAL- That the President is authorized to use all [absolutely needed] and [fitting] [military strength] against those nations, organizations..."
 
We are going to have to look elsewhere for the intent of Congress when they submitted this poorly written piece of legislation. We can look at the Congressional Record and we can look at other "Authorization(s) for Use of Military Force" issued by Congress to get an overall sense of what their intentions were. lets start with other AUMF's. We can find these in the notes section of 50USC1541:
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) Authorization.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to...
Armed Forces, as used here, generally means:
 2 a : military strength b (1) : a body (as of troops or ships) assigned to a military purpose (2) plural : the whole military strength (as of a nation) c : a body of persons or things available for a particular end <a labor force> <the missile force>.
The Congress could have just as easily said, "The President is authorized to use force as he determines to be necessary and appropriate..." It would have meant the same thing. To continue:
Authorization for Use of Military Force Against Iraq Resolution
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) Authorization.—The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution 678...
Again, we see Congress authorizing the President using similar language as before. When Congress wrote these two pieces of legislation, they understood that the War Powers Resolution only allowed them the use of the Armed Forces specifically, not the use of arbitrary force generally to run rough-shod over the countryside.
 
I propose that Congress wanted the President to pursue, capture (or kill), and prosecute those responsible for the terrorist acts committed on the United States on September 11, 2001. In order to do this, the Congress had to pass a resolution giving the President "specific statutory authorization" to use military force. Put simply, SJR23 gives the President permission to play war with his army men. When we look at 50USC1541, we can see why Congress had to put forward Senate Joint Resolution 23. In order to introduce the United States Armed Forces into hostilities, Congress has to, per the Constitution, empower the President, via a resolution (50USC1541(b) -- Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper...). It should also be noted that the law recognizes that any empowerment of "any department or officer" must be "vested by the Constitution in the Government of the United States." In other words, there is granted no authority for "extra-constitutional powers", "unconstitutional powers", etc. because all empowerment must be couched in the Constitution.
 
Finally, we should look to the debates that occurred in Congress that led to the passing of SJR23. The Congressional Record has quite a bit of information that you can read concerning these matters. I will tell you that emotions were running rather high after September 11, 2001. Some of the comments made by Congressmen and Congresswomen were pretty indicative of the general feeling of revenge that existed at that time. I do want to highlight some comments by Senator Biden to show you what Congress intended when they passed this bill. However, for the sake of openness, I will say that their were comments made (not specifically about this bill, but in general) that wished horrible things on those responsible for the terrorist attacks. It is important and necessary to differentiate between these two types of comments.
 
Mr. Biden: "I believe it is fairly remarkable that, in spite of the reasons for the attack on us and our way of life, we adhered to the rule of law; that even in this calamity, we acted with dispatch but under the law, under the Constitution.

The resolution provides the President clear authority ‘‘to use all necessary and appropriate force against those nations, organizations, or persons that he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.’’ In short, the President is authorized to go after those responsible for the barbaric acts of September 11, 2001 to ensure that those same actors do not engage in additional acts of international terrorism against the United States.

The authority permits the President wide latitude to use force against the broad range of actors who were responsible for the September 11 attacks. If any nation harbored the terrorists while they were in training, that nation may be subject to American military power. If a nation or organization financed the operation, they may be subject to American military power. It does not limit the amount of time that the President may prosecute this action against the parties guilty for the September 11 attacks. We must all understand that the use of force will not be easy or quick. In extending this broad authority to cover those ‘‘planning, authorizing, committing, or aiding the attacks’’ it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism.

The authority granted is focused on those responsible for the attacks of September 11. The President’s lawyers originally proposed that the resolved clause also include language authorizing military force to ‘‘deter and preempt any future acts of terrorism against the United States.’’ Of course, the President has the Constitutional authority to deter terrorism through a broad range of means, including diplomatic measures, economic sanctions, seizing of financial assets, or deployment of forces. The President must also ensure that Executive Branch agencies devote the necessary resources and apply the full measure of the federal criminal laws to deter, prevent and punish terrorism. Further, the President has the authority under the Constitution to use force to preempt an imminent attack, including a terrorist attack, against the United States. Rather than purporting to extend these authorities in the resolved clause, the final whereas clause reflects these recognized powers of the President.

I suggest what others have said, and that is, the President of the United States has our prayers, he has our good wishes, and he has our commitment under the Constitution now to support him in what action he takes as defined by the authority he has. That is a big deal. It is a big deal. It is worth noting."

I believe Senator Biden summed it up pretty well when he said the President has wide latitude to use force, but he can only use that force abroad. Mr. Biden understood that the Constitution had protections in place that the Congress and the President could not side-step by passing this resolution. This had never been the case, and it never will be the case. When Attorney General Alberto Gonzales and his ilk say that Congress gave them the authority to use warrantless searches on Americans, I say show me where the Fourth Amendment has been suspended or repealed. As long as the Fourth Amendment stands, they are violating our rights and they are violating their oaths to uphold our Constitution.

posted by Don Bangert | 7:24 AM

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