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Our national debate on the President’s surveillance powers has reached an impasse. We’re at the “Am not!” “Am too!” stage, which can only be resolved through the intervention of a parent.
Our side of the argument is laid out pretty well in an editorial in today’s Washington Post.
Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president’s argument that FISA’s limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that — which the administration rejected — would have been to seek changes in the law, not to do a stealthy end run around the legislative process. In such an amorphous, long-running conflict as the war against terrorism, it’s critical to ensure that limits are in place to prevent the executive branch from overreaching.
The White House has yet to explain why, if FISA regulations were cumbersome, it did not ask Congress for changes. After 9/11 Congress was tripping all over itself to give President Bush every tool he could possibly ask for to fight terrorism. The Patriot Act did, in fact, make changes in FISA (see Title II: Enhanced Surveillance Procedures). Clearly, the White House simply didn’t bother to follow legal procedure. They didn’t think they had to.
And now that they’ve been caught, they’ve gone on the defensive to make critics out to be dupes of terrorists. Instead of discussing the real issue (why the White House bypassed constitutional procedures) they’re trying to make the issue about why the Democrats are soft on terrorism, leading to the “Am not!” “Am too!” impasse. Now we need Mom to step in to make Georgie explain his extraconstitutional shenanigans and send him to his room until he promises to stop. And no computer or video games for you tonight, young man!
Today President Bush said the Supreme Court had approved warrantless wiretapping, which might come as a surprise to the justices. He’s referring to the Hamdi v. Rumsfeld decision, decided in 2004. If you don’t want to slog through the entire decision, there’s a brief abstract here.
Yaser Hamdi, an American citizen, was arrested in the fall of 2001 in Afghanistan by U.S. military. He was declared an “enemy combatant” and transferred to a military prison. A defense attorney filed a writ of certiorari in federal district court. Perhaps a reader with a law degree can explain this, but I take it this was a petition for the court to review Hamdi’s case. Anyway, the attorney, Frank Dunham, Jr., argued that the government had violated Hamdi’s 5th Amendment right to due process “by holding him indefinitely and not giving him access to an attorney or a trial,” says the abstract. “The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system.”
So how did the case turn out? The abstract continues,
In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O’Connor wrote that although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.
If you’re not seeing authorization for warrantless wiretapping in there, don’t worry. You aren’t the only one. A whole lot of real smart legal scholars got together to write this in the February 9 issue of the New York Review of Books:
Finally, the DOJ’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a “fundamental incident of waging war.” Id. at 519. The plurality expressly limited this holding to individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the “exclusive means” by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.
The AUMF is an act of Congress, the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). The White House argues that Congress implicitly authorized the NSA domestic spying program by means of the AUMF. The Department of Justice argues that
The Supreme Courtâ€™s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the Presidentâ€™s use of all traditional and accepted incidents of force in this current military conflictâ€”including warrantless electronic surveillance to intercept enemy communications both at home and abroad. [emphasis added]
Oh, so did Justice O’Connor write in the majority decision that the AUMF authorizes the President to engage in warrantless wiretapping? Um, well, Justice O’Connor didn’t write about wiretapping or surveillance at all in the Hamdi decision. She does address warrantless arrests of American citizens, and she took a dim view of them. But not a peep about surveillance.
To understand where the Right is seeing this authorization for warrantless wiretapping in Hamdi, I turned to Paul of PowerLine, who wrote,
Specifcally, the Court ruled that AUMF grants the president implied authority to detain U.S. citizens in the U.S. because detention to prevent a combatant from returning to the battlefield is a fundamental incident of waging war. In the same way, AUMF can be read as authorizing the president to conduct communication surveillance targeted at the enemy on the ground that it too is a fundamental incident of waging war. If so, then the intercept program does not violate FISA because that statute contains an exception for surveillance authorized by statute.
Yes, O’Connor’s decision does say that combatants can be detained: “The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ … The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. … There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. … In light of these principles, it is of no moment that the AUMF does not use specific language of detention.”
My reading of O’Connor’s decision is not that the AUMF authorized detention, but that detention is indisputably something that soldiers in war can do to someone fighting them. If we extrapolate Paul of PL’s reasoning, we’d have to say that warrantless wiretapping of American citizens is indisputably something that the White House can do. That’s not workin’ for me.
And the Court ruled against the Bush Administration in the Hamdi case, remember. The Court said that the executive branch cannot arbitrarily declare that an American citizen may be stripped of his due process rights, even if that citizen is caught fighting against the U.S. in a foreign country. Justice O’Connor wrote,
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”). …
… We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. [emphasis added]
This, folks, is the legal decision that Bush claims supports his warrantless wiretapping program. This, folks, is called “blowin’ smoke” where I come from. There are a great many more colorful things one might call it.
The legal eagles in the New York Review of Books say that the Hamdi decision is limited to to people engaging in armed conflict against the United States in Afghanistan. Further, Congress cannot have implied authorization of the NSA program, because “Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.”
I will admit right now that I am no lawyer. Paul of PowerLine is a lawyer, or so he says. Someone on the Right might — no, will — say that he must understand this legal stuff better than I do. And maybe he does. But what he claims about Hamdi is pure fantasy. I may not be a lawyer, but I can read, and I can think. And I know bullshit when I see it.