Greg Kochanski

Quite a few constitutional questions hinge on the meaning of Public Law 107-40 [S. J. RES. 23], the congressional resolution passed on September 18, 2001, just days after terrorists destroyed the World Trade Center. It has been used to justify wiretaps on a massive scale, and other substantial expansions of presidential power. (To give a point of comparison, in 1965, the FBI maintained just 75 wiretaps [page 100, "A G-Man's Life", by Mark Felt and John O'Connor].)

So, it may pay to look at the text of the resolution. The relevant part 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.

To step back from politics and look at this in a rational manner, let's translate the words with heavy emotional content into equivalent words that we can deal with more calmly. (I do this to come up with the best possible reading; we'll put the original words back in at the end.)

• Let's replace the executive figure, the President, with a Librarian: both are executives.
• Let's replace "all necessary and appropriate force" with "levy fines."
• Let's simplify "nations, organizations, or persons" to "persons": just shorter.
• Replace "authorized, committed, or aided" with "committed": just shorter.
• Let's replace "terrorist attacks" with "damage to books": less emotional.
• Replace "September 11, 2001" with "last week": less emotional.
• Replace "acts of international terrorism against the United States" with "damage to Library property".

So, what does it say now?

Now, how would one interpret that?

• The Librarian can fine you if you are a threat to the books, but only if you are one of "such persons." And, who is a "such person?" The only class of person mentioned in the sentence (other than the Librarian) is "those persons he determines committed the damage".
• Based on this, one would not expect the Librarian to fine a person unless they committed damage or harbored someone who committed damage.
  (Harboring someone implies you are providing safety and support; it is not a casual relationship. It requires a degree of knowledge and intent: for instance, hotel owners are not normally charged with harboring criminals unless there are special circumstances.)
• The Librarian can only fine you with the intent of preventing damage to the books.
• Now, there is a loophole: if the Librarian determines that you "committed the damage to books", then you can become a target, whether you actually did the damage or not. In the world of Librarians, there are other laws that make it illegal for a librarian to falsely accuse you of damaging books. I leave it to constitutional lawyers whether or not similar constraints apply to the President.

But, now let's put the original words back into our conclusions and see what we get.

• The president can act against members of Al Qaeda, anyone who took part in the destruction of the world trade center, and anyone or any nation that knowingly supported them.
• The authorization does not seem to extend beyond that set. That's a fairly short list. It includes a few hundred people, and the Taliban Afghan government, and maybe Afghanistan. Perhaps it might stretch to cover Iraq, or Pakistan, though those cases appear to be more similar to the case of the hotel owner. It certainly doesn't cover the USA as a whole, and it wouldn't cover more than a handful of people in the USA who aren't al Qaeda members.
• The resolution does not appear to empower the President to act against anyone, even if they are a terrorist, unless they are a member of that set.
• The resolution does not appear to authorize action unless it is for the purpose of preventing future terrorist acts. It thus does not allow these exceptional powers to be used for retribution or revenge. (Unless you could make the argument that retribution or revenge were necessary to prevent future terrorist acts.)
• Any actions need to be "necessary" and "appropriate", and need to be taken with the goal of preventing future terrorism against the United States by al Qaeda and helpers.
• And, then there's the loophole.

Lawyers might disagree, with this analysis, of course. They might claim that this is special legal language that cannot be interpreted as plain English. However, Jargon and special languages have a specific and limited role in the world. They are useful and acceptable when precision needs to be combined with compact language. For instance, a physicist writes "quark" to avoid the necessity of adding a long and complex description several times in each paragraph. A linguist writes "fricative" to refer to a particular type of speech sound that everyone in the field understands, and that it would be impractically messy to describe over and over again. A lawyer writes "contract" to mean a particular kind of exchange of valuables, governed by a particular set of laws. Millions of contracts are executed every day; were we to write out all the details on each one, the sheer waste of paper would be unimaginable. Moreover, the effort involved in reading and understanding all those contracts, written out with fully detailed explanations, would require us all to be lawyers.

However, this justification for jargon does not apply for resolutions like Public Law 107-40 [S. J. RES. 23]. Precision may be necessary, but we don't go to war very often. Certainly not so often that we need to write it out in short-hand. So, there is little or no honest justification for jargon here because there is no need to write compactly.

In fact, it may also fail the other test for useful jargon: precision. Honest jargon encapsulates a precise idea that is defined somewhere; everyone knows what it means. To the extent there is disagreement about the meaning of jargon, it has failed its purpose.