The DOJ vs. Andrew McCarthy

(updated--multiple times)

I've previously noted that the Supreme Court's decision in Hamdan fatally undermined the only two legal theories the Bush administration has ever offered in defense of its warrantless surveillance program (theories which, by the way, were borderline frivolous even before Hamdan). This led me to make the following observation:

The White House will no doubt press very hard for the
reauthorization of the program, but for government lawyers,
this is going to be a real moment of truth. It's one thing to
push the limits of the law on behalf of a client. It's quite
another thing to take positions you know to be meritless.
Even if you strongly believe that an argument should carry
the day, there is a point at which you have to acknowledge
that it hasn't. We've reached that point with respect to the
arguments underlying the NSA program. I just hope the
lawyers at the DOJ and NSA have the integrity to
acknowledge it. If the President wishes to continue to
disregard the law, he should have to do so without the
blessing of the government's attorneys.

Well, sadly, it appears I had a little too much faith in the integrity of the government's lawyers. In response to a letter from Senator Schumer concerning the application of Hamdan to the "Terrorist Surveillance Program," the Department of Justice has drafted a letter reaffirming its position that the AUMF and article II authorize the President to disregard the prohibitions of FISA. As David Barron puts it, the DOJ's response is, essentially, "Hamdan, Schmamdan" (a big hat tip to David for highlighting these letters and posting them on his site).

It's difficult to overstate just how frivolous and willfully obtuse the DOJ's post-Hamdan legal position is. Perhaps the best way to illustrate just how laughable the government's position is at this point is to compare the DOJ's letter to an article published today in the National Review by the person who has arguably been the Bush administration's chief legal apologist regarding the NSA program, Andrew C. McCarthy.

First, from the DOJ letter:

Our initial impression is that the Court's opinion does not affect
our analysis of the Terrorist Surveillance Program . . .

Now from McCarthy:

Hamdan is a disaster because it sounds the death knell for
the National Security Agency's Terrorist Surveillance
Program (TSP) . . . . Logically, albeit very unfortunately,
the court has simultaneously brushed aside both
administration justifications for the TSP.

The DOJ letter:

It is . . . more natural to read the Force Resolution as
supplying additional, contemplated electronic surveillance
authority for the armed conflict with al Qaeda than it is to
read the Force Resolution as augmenting the authority in
the UCMJ.

McCarthy:

Regarding the administration's AUMF theory, the five-
member majority opined that because the AUMF does not
expressly mention military tribunals, it cannot be construed
to authorize them beyond any statutory limits Congress has
enacted (in the UCMJ). "Repeals [of statutes] by implication,"
Justice John Paul Stevens maintained, "are not favored."
This is no different from saying the AUMF did not authorize
anything it failed to specify, at least if some other statute
seems to have been affected.

The DOJ:

[T]he Government did not argue and the Court did not
decide in Hamdan that the UCMJ would be unconstitutional
as applied if it were interpreted to prohibit Hamdan's military
commission from proceeding. . . . In order to sustain this
argument, the Court would have had to conclude that the
UCMJ, so interpreted, unduly interfered with "the President's
ability to perform his constitutional duty." . . . Such a showing
would be considerably easier in the context of the Terrorist
Surveillance Program . . .

McCarthy:

Still, far more dire for separation-of-powers concerns, and thus
for national security, is the Hamdan majority's obliteration of
inherent presidential authority, the administration's first theory
in support of the TSP. . . .Under Hamdan's logic, even if the
president starts out with inherent Article II authority, that
power - constitutional power - can now be rescinded by
statute.

Anyway, you get the picture. McCarthy's take on Hamdan and the DOJ's could not be more diametrically opposed.

For the record, I don't mean to endorse McCarthy's characterizations of the legal doctrines at issue here. His piece is deeply disingenuous in a number of respects, and his description of the state of the law pre-Hamdan is remarkably misleading (he also wins the unintentional irony award for actually using the phrase "imperial Congress" in his piece). But that's all beside the point. The key observation here is that even Bush's most loyal apologists understand that Hamdan renders the administration's legal theories frivolous.

Perhaps someday the folks at the DOJ will wake up and realize that they are signing off on a program that no longer has any colorable legal basis. How clear does the Supreme Court have to be?

For more, see this post by Marty Lederman.

UPDATE: Jack Balkin chimes in:

The DOJ has announced that it regards the Hamdan case
as irrelevant to the legality of the NSA controversy. As Marty
and I have pointed out here and here, this is not a plausible
reading of Hamdan.

In effect, the Bush Administration has told the Supreme
Court: we'll keep on doing what we want until you directly
order us not to. The Bush Administration is clearly counting
on the fact that it will take many years for a final
determination of the legality of the NSA program. . . .

What the press and the public must understand is that this
Administration does not play by the rules. It does not take
a hint. Instead it will continue to obfuscate and prevaricate,
as it has so often in the past on issues ranging from
detention to prisoner mistreatment. This Administration
will not conform its actions to the Rule of Law unless it
finds [not] doing so politically infeasible. As a result, the
Congress, the courts, the press and the public will have to
object-- repeatedly and strenuously-- if they want the
Executive to abide by its constitutional obligation to take
care that the laws be faithfully executed.

I fully agree.

UPDATE 2: More from Andrew McCarthy, this time at Bench Memos on NRO.

Here's McCarthy explaining why the administration's defense of its military tribunal system, which was just rejected by the Court in Hamdan, was stronger than its defense of the NSA program:

Here, as I suggested before, is the big problem for the NSA program. Detention and trial of alien enemy combatants is a conduct-of-war issue; sure, Congress has some legitimate interest, but conduct-of-war is a predominantly executive matter. . . . In contrast, the NSA program implicates the privacy interests of at least some American citizens. I personally think the wartime national-security imperatives and the limited nature of the program make the NSA program legal. Still, I appreciate that Congress’s interest in regulating eavesdropping within the United States is greater than its interest in the detention and trial of enemy combatants outside the United States. Therefore it is a reasonable argument — however much it chagrins me — that circumventing FISA is a more weighty matter than arguably circumventing the UCMJ. I happen to think both circumventions are appropriate, but I’m not the Supreme Court. And given what the Supreme Court has done in the UCMJ case, what shall I expect the justices to do if the clash of FISA and the NSA program ever gets before them?

He then concludes:

Finally, not to go on much longer in this already lengthy response, I have spent a great deal of time and energy studying and trying to explain what I understand to be the legal basis for the NSA program. (For those interested, see this lengthy white paper for the Federalist Society that I compiled with brothers Rivkin and Casey). Throughout the Hamdan majority opinion, and especially in the Kennedy concurrence (particularly where he discusses Justice Jackson’s Steel Seizure concurrence), one immersed in these issues perceives resonances of the letter submitted to Congress by fourteen scholars of constitutional law and former government officials. That letter, available here, posits that the NSA program is illegal. Even though the letter is not cited in Hamdan, its influence is palpable. It was that letter, and a similar ABA report, that prompted David, Lee and I to do our study. My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost. I’ve lost.

It's too bad the lawyers at the DOJ can't admit what is apparent to everyone else: the NSA program is no longer legally defensible.