Impliedly dictatorial

The Post is running another article relating the Bush administration's justification for invading our privacy. A gem of constitutional-ish psuedo-scholarliness

Steven G. Bradbury, acting assistant attorney general for the department's Office of Legal Counsel ... said the president has a special role -- and duty -- to take whatever military action is needed to counter attacks on the United States, and those actions necessarily include intercepting telecommunications and e-mail.

I for one very much doubt that the Framers' interpretation of "military action" would include the unwarranted interception of citizens' personal communication. As for the president's "special role," being commander in chief hardly entitles him to take extralegal action any more than would be allowed of other military commanders. I hope that those arguing that Bush hasn't overstepped here wouldn't grant our generals unchecked, super-legal power to disregard our laws (indeed, British generals acting thusly are a big reason we have a Bill of Rights). Furthermore, the explicit enumeration of powers in the constitution seems to point to Congress as the source of decision-making authority for legal issues in war:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Whew! That's a lot of stuff Congress gets to decide. Let's see the sum total of enumerated presidential authority regarding the military:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;

Hmm. Yep, that's definitely the branch charged with doing whatever the fuck he wants during undeclared wartime. Or not.

So if Congress does have some authority in these matters, what do they say? According to Alberto Gonzalez,

the president's power to protect the country with surveillance was reaffirmed when Congress passed a resolution in October 2001 that authorized the president to use military force against al Qaeda and to deter future terrorist attacks.

That's great, except it's not what Congress actually said. From Sen. Joe Biden:

In extending this broad authority to cover those ‘planning, authorizing, committing, or aiding the attacks’ it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism. [Congressional Record, 9/14/01]

And it's been said a lot, but I'll reiterate: we have a secret court that can issue secret warrants for this kind of communication, even after the information has been secretly collected. Is Bush worried that these secret magistrates might in fact be (secretly) terrorist spies, that they would reveal our secret methods to our enemies? Cause they haven't exactly been an impediment to the administration's requests of warrants thus far (via Josh Marshall).