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VIII.  The Authorization for Use of Military Force

After the terrorist attack on this Country of September 11, 2001, the Congress jointly enacted

the Authorization for Use of Military Force (hereinafter “AUMF”) which states: 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.⁴⁶

The Government argues here that it was given authority by that resolution to conduct the TSP

in violation of both FISA and the Constitution.

First, this court must note that the AUMF says nothing whatsoever of intelligence or

⁴⁶Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001)

(reported as a note to 50 U.S.C.A. § 1541)

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surveillance.  The government argues that such authority must be implied.  Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted.  Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable.  Indeed, the government here claims that the AUMF has by implication granted its TSP authority for more than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such

a Declaration.⁴⁷

FISA’s history and content, detailed above, are highly specific in their requirements, and the

AUMF, if construed to apply at all to intelligence is utterly general.  In Morales v. TWA, Inc., 504

U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.”  Id. at 384.  The implication argued by Defendants, therefore, cannot be made by this court.

The case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) in which the Supreme Court held that a United States citizen may be held as an enemy combatant, but is required by the U.S. Constitution to be given due process of law, must also be examined.  Justice O’Connor wrote for the court that:

D etention of individuals . . . for the duration of the particular conflict in which they are captured is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.   Hamdi, 542

U.S. at 518.

She wrote that the entire object of capture is to prevent the captured combatant from

returning to his same enemy force, and that a prisoner would most certainly return to those forces

⁴⁷50 U.S.C. § 1811

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if set free.  Congress had, therefore, clearly authorized detention by the Force Resolution. Id. at 518-

519.

However, she continued, indefinite detention for purposes of interrogation was certainly not authorized and  it raised the question of what process is constitutionally due to a citizen who disputes the enemy combatant status assigned him.  Hamdi, 542 U.S. at 521, 524.

Justice O’Connor concluded that such a citizen must be given Fifth Amendment rights to contest  his  classification,  including  notice  and  the  opportunity  to  be  heard  by  a  neutral decisionmaker.  Hamdi, 542 U.S. at 533 (citing Cleveland Board of Education v. Laudermill, 470

U.S. 532 (1985)).  Accordingly, her holding was  that the Bill of Rights of the United States

Constitution must be applied despite authority granted by the AUMF.

She stated that:

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

* * * *

Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for   the   alleged   combatant   to   demonstrate   otherwise   falls constitutionally short.  Hamdi, 542 U.S. at 532, 537.

Under Hamdi, accordingly, the Constitution of the United States must be followed.

The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here.  Even if that Resolution superceded all other statutory law, Defendants have violated  the  Constitutional  rights  of  their  citizens  including  the  First  Amendment,  Fourth Amendment, and the Separation of Powers doctrine.

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