Remarkable.

(ii) David pinpoints (pp. 6-7 & nns. 59-62) why the DOJ notion that Congress approved the NSA rogram in the 9/18/01 Authorization for Use of Military Force is undermined by the drafting, negotiation and enactment of the PATRIOT Act that was happening at approximately the same time. We've heard a lot in recent days about how critical it is that the PATRIOT Act be renewed to permit the President to fight the War on Terrorism. Just check out the President's remarks today on signing the renewal -- it's all about how the PATRIOT Act is so critical to the fight against the terrorists responsible for 9/11. (Hasn't the President heard the news that those authorities were already enacted in the AUMF?) We heard the same thing back in 2001, when the Act was first introduced. But the logic of the DOJ defense of the NSA program, if it were correct, would mean that many key provisions of the PATRIOT are largely superfluous. (Few observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.)