Hamdan and the NSA

HAMDAN AND THE NSA….Is the NSA’s domestic spying program legal? It plainly violates the FISA Act, which requires the government to get warrants before it places wiretaps on “U.S. persons,” but the Bush administration has offered up two reasons that it may be legal anyway: First, that the Authorization for Use of Military Force, passed shortly after 9/11, overrides FISA. Second, that even if it doesn’t, FISA is an unconstitutional infringement of the president’s inherent commander-in-chief powers.

But guess what? It turns out that these were exactly the arguments the administration made in the Hamdan case, and the Supreme Court rejected both of them. Jack Balkin explains:

The Court…held that “Neither [the AUMF or the Detainee Treatment Act] expands the President’s authority to convene military commissions. . . .[T]here is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ.”

….What about the President’s inherent powers under Article II as Commander-in-Chief? Don’t they override Congressional limitations? No, said the Court in Hamdan in a footnote: “Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”

In other words, if AUMF doesn’t override the Uniform Code of Military Justice, there’s no reason to think that it overrides FISA. And if Congress can limit the president’s Article II powers when it comes to military tribunals, it can also do so when it comes to domestic surveillance. Marty Lederman follows this up with a pointed question:

What will OLC do when ? presumably within 45 days ? the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ.

This seems pretty clear cut. But apparently not clear cut enough: On Monday, the Department of Justice wrote a letter to Chuck Schumer saying that it stood by all its old arguments for the NSA program even though Hamdan has rather clearly eviscerated them.

So what happens next? The Supreme Court has spoken and the president has decided to flatly ignore them. Stay tuned.