Will Baude   Amy Lamboley   Amanda Butler   Jonathan Baude  Peter Northup   Beth Plocharczyk   Greg Goelzhauser   Heidi Bond   Sudeep Agarwala   Jeremy Reff   Leora Baude

December 20, 2005

After AUMF, What?

To recap:

The President maintains 1, that his warrantless wiretaps do not violate the Foreign Intelligence Surveillance Act because FISA was implicitly repealed in part by the Authorization for the Use of Military Force, and 2, that it is vital that the PATRIOT Act be renewed.

Marty Lederman suggested that these positions were inconsistent, and I concurred. If AUMF was really a broad repeal of such statutory schemes as FISA, who needs the Patriot Act? Presumably AUMF gives the president everything he needs.

Anthony Rickey suggests that this claim of inconsistency is too hasty. After all, AUMF applies broadly, but only to a specific class of people ("(T)hose nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.") So for all other terrorists, we still need the PATRIOT Act.

Now Anthony is of course right that AUMF, even under the Bush interpretation, does not wholly preclude the PATRIOT Act. But even he cannot make sense of all of Bush's theory of PATRIOT. In his radio address, which is what I (and I think Marty) were responding to, Bush said:

These Senators need to explain why they thought the Patriot Act was a vital tool after the Sept. 11 attacks but - but now think it's no longer necessary.

The terrorists want to strike America again. And they hope to inflict even greater damage than they did on Sept. 11.

...

In the war on terror, we cannot afford to be without this law for a single moment.

As I understand the President's argument, it is that the PATRIOT Act is needed to fend off Al-Qaeda and its collaborators, not some other group of terrorists that had nothing to do with 9/11. One might say that it is unfair to hold the President's press remarks to the standards of a legal brief, but so far as I know, the President still doesn't argue that there are imminent threats that the PATRIOT Act would deal with that aren't also within what he believes to be the ambit of AUMF.

Relatedly, Anthony writes:
(E)ven if one credits the President's argument, the Patriot Act would be necessary with regards to against any terrorist group not allied with Al Quaeda, or even one that allied with them after September 11. The Patriot Act would apply to Hamas even if it later joined with Bin Laden, or a terrorist group with different motives for attacking the US (e.g. the IRA, the Tamil Tigers). AUMF would not, and thus presumably would not override FISA.

But it's not at all clear that the President and his Attorney General share Anthony's belief about the narrow scope of AUMF.

So. Anthony is of course right that it is not inherently inconsiatent for the administration to both stump for PATRIOT Act re-authorization and to insist that AUMF acted (unbeknownst to almost all) as an implied repeal of FISA for certain targets. But thus far the administration's arguments for the PATRIOT Act (and in particular Bush's argument that it must be re-authorized now in order to fend off imminent threats from Al-Qaeda) are indeed inconsistent with his alleged theory of AUMF. It is possible that the administration will eventually decide to reconcile the two positions, but at the moment it is showing no sign of even trying to pretend that there is a theory of legal interpretation (other than national security purposivism) at work here.


TrackBack URL for this entry: http://WWW.crescatsententia.org/cgi-bin/mt-tb.cgi/3359

Fair Trade

Does "fair trade" coffee result in a net increase in worker welfare? Tyler Cowen suggests it's unclear, since the creation of a high-salience higher-cost coffee makes it easier for producers and vendors to split the market. Of course, this requires the supermarket or coffee shops, etc. to have some degree of market power to set prices. On the one hand, branding and location make this more possible, but on the other hand, there are a lot of different coffee sellers, especially in big cities or near college campuses.

I have always been confused about why people wanted to pay more for their coffee and then trust the corporations they dislike to pass the money backwards rather than simply donating 25 cents to some international charity directly. Maybe it's just too hard to find a UNICEF jar.

UPDATE: One Friend of Crescat writes in to suggest that there is some perceived difference between working "in the system" (by voluntarily paying higher prices in hopes of a trickle-down effect) and working "outside the system" (by giving money to an agency that promises to help those one wishes to help). As I was getting a cup of coffee with said Friend, another thought occurred to me. At least at our local coffee shop, there are a huge varieties of coffees at various prices, and the Fair Trade Coffee is less expensive than a few of the most expensive brands. This suggests that the price-discrimination is already possible without the need for a Fair Trade stamp, because coffee snobs will pay extra for beans that come from a special tree or are hand-roasted by blind monks, while others will buy in bulk from Trader Joe's. Fair Trade Coffee, then, probably doesn't enable one to segregate a market any more than already before.


TrackBack URL for this entry: http://WWW.crescatsententia.org/cgi-bin/mt-tb.cgi/3358

Wiretaps, Continued

Dan Solove rounds up coverage of the President's wiretap program. Other than those I linked to yesterday, the most interesting new contribution is Cass Sunstein's argument that the AUMF does indeed override FISA's requirements.


TrackBack URL for this entry: http://WWW.crescatsententia.org/cgi-bin/mt-tb.cgi/3357