Repeal By Chit-Chat?
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One of the key arguments of the apologists for the NSA warrantless wiretapping program (which, recall, authorizes spying on American citizens on American soil without a warrant) is that the congressional Authorization of the Use of Military Force ("AUMF") passed shortly after September 11 repealed the relevant provisions of the Foreign Intelligence Surveillance Act ("FISA") covering the warrant requirement for domestic eavesdropping.
The problem with this argument is that there is no such repeal in the text of the AUMF. There is no mention of FISA in the AUMF one way or the other.
Therefore, the argument that "FISA no longer applies after the AUMF" requires a legal maneuver known as "repeal by implication." Which is problematic for the advocates of the NSA "Terrorist Surveillance Program," since it is among the most fundamental jurisprudential principles that the law abhors repeal by implication. It is always presumed to be an invalid method of statutory interpretation, for the rudimentary reason that if a legislature wants to repeal its own statute, then it is free to do so. If Congress wants to amend or repeal FISA, then it can proceed whenever it likes. (Indeed, FISA has been amended six times since September 11, but not via the AUMF.)
That was a rather lengthy wind-up to a somewhat unrelated pitch, but if the law abhors repeal by implication, then must it not also abhor what I call "repeal by chit-chat"?
Remember, Congress expressly defunded comprehensive risk profiling of air travelers. That is not disputed by Chertoff or anyone else.
No, DHS' defense of their Automated Targeting System is based on the bizarre reasoning that, since they went ahead and did it anyway (just under a different name) and Chertoff gave some speeches about it (not Congressional testimony, but some random speeches) and inserted some fleeting passages about it into the eddies and backwaters of the Federal Register, then that "must" mean that Congress approves of it and "must" have impliedly repealed the funding ban. Chertoff even claims to be "exasperated" that anyone could possibly think otherwise. Wasn't Congress listening to all those speeches Chertoff was giving? Doesn't everyone read every entry in the Federal Register?
Madness. Sheer madness.
Repeal by implication is presumptively invalid. Repeal by chit-chat is downright preposterous.
Via 27B Stroke 6 (times two). More thoughts at DeepLinks.
The problem with this argument is that there is no such repeal in the text of the AUMF. There is no mention of FISA in the AUMF one way or the other.
Therefore, the argument that "FISA no longer applies after the AUMF" requires a legal maneuver known as "repeal by implication." Which is problematic for the advocates of the NSA "Terrorist Surveillance Program," since it is among the most fundamental jurisprudential principles that the law abhors repeal by implication. It is always presumed to be an invalid method of statutory interpretation, for the rudimentary reason that if a legislature wants to repeal its own statute, then it is free to do so. If Congress wants to amend or repeal FISA, then it can proceed whenever it likes. (Indeed, FISA has been amended six times since September 11, but not via the AUMF.)
That was a rather lengthy wind-up to a somewhat unrelated pitch, but if the law abhors repeal by implication, then must it not also abhor what I call "repeal by chit-chat"?
Homeland Security Secretary Michael Chertoff says it should not surprise people that for years his department has searched for terrorists among tens of millions of airline passengers, cross-checking travelers' personal data against terrorist watch lists and analyzing them for potential terrorist activity.To which the only possible response is, "So what?"
...
"Yeah, they missed about 100 speeches that I gave," an exasperated Chertoff told National Journal on December 5. "I've talked about ... PNR data and biographic data and using it to analyze and connect the dots about people before they come into the country; I have to have given at least 20 speeches about it."
Remember, Congress expressly defunded comprehensive risk profiling of air travelers. That is not disputed by Chertoff or anyone else.
No, DHS' defense of their Automated Targeting System is based on the bizarre reasoning that, since they went ahead and did it anyway (just under a different name) and Chertoff gave some speeches about it (not Congressional testimony, but some random speeches) and inserted some fleeting passages about it into the eddies and backwaters of the Federal Register, then that "must" mean that Congress approves of it and "must" have impliedly repealed the funding ban. Chertoff even claims to be "exasperated" that anyone could possibly think otherwise. Wasn't Congress listening to all those speeches Chertoff was giving? Doesn't everyone read every entry in the Federal Register?
Madness. Sheer madness.
Repeal by implication is presumptively invalid. Repeal by chit-chat is downright preposterous.
Via 27B Stroke 6 (times two). More thoughts at DeepLinks.
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Posted by Kip on
12 December 2006
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