From an interview with a noted Constitutional scholar(and by no means is he a consevative one) Cass Sunstein on the Hugh Hewitt Show yesterday. Transcript via The Radioblogger.
Here is an excerpt:
HH: ....First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?Read Sunstein's original post on his blog. It seems that there is a concerted effort to not only deflect but obscure the true issues of the NSA intelligence gathering program and convince the public that it is something it is not.
CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.
HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?
CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.
Cass Sunstein seems to think so too.
Read Sunstein's assessment of the poor job that the media has done covering this issue.
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?
CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.
(ht Betsy Newmark)