Limits To Power

So I’ve been following some of the debate about the NSA wiretaps. From my limited readings on the subject, my initial impression is wrong. I had the knee-jerk response of "Illegal!" When confronted with government actions of arguable constitutionality, it’s my default response. Apparently, I may be wrong. There is no settled law on the particulars of this case. I tend to think it’s a murky grey area at best, and I will let the law people argue the finer points of surveillance law. It appears that the government has been doing this for a long time, so I guess the policy debate is dead. Even if there is a roar of outrage from the general public, they’ll continue to do it. The government will spy on you. Moderate your paranoia level appropriately and deal.

It did, however, raise a question in the back of my mind that I have been contemplating. I am wondering what the limits of the Posse Comitatus Act are. My thought process runs something like this. We know that the government can, pretty much at will, declare you to be an enemy combatant. Your status is not really subject to review before they detain you. However, instead of using civilian law enforcement agents to arrest you, they simply send in a military unit to capture and/or kill you. I can see nothing that prevents the possibility of the government doing this. The PR blowback would probably be enough to bring down an administration if you hit someone who is provably innocent.

I am relying heavily on the text of the Authorization of Force quoted by Prof. Kerr in the post linked above. As I read that, the President can bring the full might of the US military against anyone who is determined to be involved in the 9/11 attacks, no matter where they might be. More generally, what are the limits of the President’s authority to order military operations against US citizens within the confines of the US? Are there any? It has always been my understanding that the President’s authority to order military operations is damned near unlimited. He is the CinC, and when he says go, people go. Is my understanding of this point correct?

I honestly don’t know. I’m not trying to figure out the possible repercussions yet. I just don’t know what is legally permissible. I’m starting to think that many of the issues involved in the fabulous and somewhat ill-defined War on Terror are inadequately addressed. I’m sure it’ll all come out at some point, but we’re still kind of flying blind with respect to how we conduct the GWOT.


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