Earlier this month, the U.S. Justice Department released a new, but still heavily redacted, version of the May 6, 2004 memorandum claiming that seizing the email and telephonic metadata of all American’s without a warrant was just fine. WC has worked his way through the new, slightly less eviscerated version. A typical page looks like this:
You can see that it’s a wee bit hard to follow the arguments because of all the redactions. Think of the redactions as a metaphor for what has been done to your constitutional rights.
Some background, first. An even more heavily redacted version of this memo was released back in 2011. When Edward Snowden blew the whistle on the details of some of the email aspects of Stellar Wind, the White House bowed to the inevitable and declassified some additional portions of portions the memo. What’s still classified – the extensive redacted portions of the May 6, 2004 memo – are the reasoning why telephone call metadata collection was treated differently than email metadata collection.
The main argument of the Memorandum is that the “war against terrorism” is a lawful war in the legal sense, and that in times of war the President of the United States can ignore the niceties of the U.S. Constitution. Since the War on Terror has no discernible end, the memo’s author, Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel, is arguing that the President can ignore the U.S. Constitution indefinitely.
Oh, sure, without conceding the President has to, Goldsmith apparently agrees that the Court of Rubber Stamping, more formally known as the Foreign Intelligence Surveillance Court or FISA, can be permitted to have a ex parte hearing and always conclude the President should have his way. But the memo, as far as you can follow it, doesn’t concede the President has to take even that meager, near-futile step. Goldsmith concludes,
The president has inherent constitutional authority as commander in chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict that authority.
WC finds that claim terrifying.
The U.S. Department of Justice – the folks in charge of defending the Constitution – are claiming that once Congress declares war, even the weird “war on terror,” Congress surrenders any right to control or limit the president’s power to wage that war. The memorandum, the official position of the Department of Justice, is that neither you or WC or Congress can do anything to limit the president’s powers during a state of war. We have no constitutional rights; only those rights the President permits us to retain, until the “war” is over.
A note here to WC’s wingnut readers: this position was staked out on President Bush’s watch, not President Obama’s. This is Bush-Cheney stuff. The worst you can say about President Obama is that he hasn’t publicly disavowed this stuff.
It would certainly be nice to know what the redacted stuff is, how USDOJ drew a line between telephonic and email warrantless seizures of metadata. But it would be even better if the President or, better still, the Supreme Court, called bullshit on the claim of unlimited, unconstrained, unconstrainable powers.
Not just as to the former president, or the current president, but all presidents.