Ignoring the Obvious Meaning of Hamdan

For some time now, it has been clear to most legal observers (at least those not affiliated with the Bush administration) that the NSA warrantless surveillance program is illegal. The program, by the Administration's own admission, does not comply with the Foreign Intelligence Surveillance Act (FISA), a duly-enacted law passed by Congress and signed by the president (indeed, Bush himself signed amendments to FISA on several occasions).

Nevertheless, the Bush administration--after being caught violating a criminal law--offered two rather "novel" legal arguments purporting to justify this violation. The first was that Congress had somehow, unknowingly, authorized the President to disregard FISA when it passed the Authorization for Use of Military Force shortly after 9/11. The second argument, which was far more ambitious, simply asserted that the President, by virtue of his status as Commander in Chief, had the inherent authority to disregard FISA's prohibitions.

Neither of these arguments had any real basis in the law. The administration's reading of the AUMF had no support whatsoever in the legislative history and flew in the face of all accepted canons of statutory construction. And the article II argument, if accepted, would have entirely derailed our constitutional system of government and caused our Founding Fathers to roll over in their graves.

Of course the spurious nature of these arguments didn't stop the Bush administration or its flacks in Congress and the media from repeatedly treating them as if they were persuasive and supported by existing case law.

Well, this past week, the Supreme Court addressed both of these arguments in a closely-related context--the legality of the Bush administration's military tribunal system--and quickly dispatched them.

The administration had argued that the AUMF gave the President the authority to create military tribunals that were inconsistent with the requirements of pre-existing law, specifically the Uniform Code of Military Justice (UCMJ). The Court summarily rejected this argument, observing that "there 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 . . . the UCMJ."

The same is clearly true with respect to FISA and the president's surveillance authority. Moreover, the government's AUMF argument was considerably stronger in Hamdan than it would be with respect to the NSA program. Trying foreign combatants captured on a foreign battlefield is much closer to being the type of "fundamental incident of war" one might expect Congress to have contemplated when passing the AUMF, and there was at least some support for this argument in the Court's recent Hamdi decision. But if the AUMF did not supersede the UCMJ with respect to military tribunals, there is simply no way that the AUMF superseded any part of FISA, which governs the surveillance of Americans on American soil. That argument is now officially dead.

The same is true with respect to the "inherent authority" argument, which was dismissed by the Court in a single footnote. Indeed, the government's attorneys apparently chose not to argue this point in Hamdan, probably because they knew that 1) it was meritless and 2) even the conservative Justices were unlikely to embrace it.

So with its only two legal justifications for the NSA program having been decisively rejected in a closely-related context, the administration no longer has even a colorable legal basis for continuing to violate FISA. The importance of this point cannot be understated. The Bush administration is, at this very moment, engaged in ongoing violations of a criminal statute, and it is doing so without the benefit of a single even arguably viable legal justification.

So how will the Bush administration and its surrogates respond to this dilemma? Well, I suspect they'll follow the lead of "maverick" Senator John McCain, who, when faced with this exact question on Sunday, responded with some of his infamous "straight talk."

On This Week, George Stephanopoulos made the obvious point that in Hamdan the Court decisively rejected the very same arguments being offered in support of the NSA program. He then asked McCain whether he thought the decision "called into question the legality of the Terrorist Surveillance Program." The question seemed to catch McCain off guard, and he sat there blinking weirdly for a few seconds. I suspect he was pondering whether he should answer the question honestly or provide some disingenuous non-responsive answer. He eventually opted for the latter. He told Stephanopoulos that he didn't think Hamdan "particularly applies" to the NSA program and that he saw Hamdan as strictly an opinion about military tribunals.

Yeah, and Youngstown was an opinion about steel. The suggestion that Hamdan should be confined to its facts is ridiculous on any number of levels. In terms of Supreme Court precedent, you will never see a case more directly on point than Hamdan is with respect to the NSA controversy. It involves the same arguments and legal theories, the same conflict, the same actors, and the same contested resolution (the AUMF). Moreover, the opinion was handed down amidst a raging public controversy over the expansive theories of executive power claimed by this President. This context was not lost on the Court.

The controversy over the NSA program, more than any other issue, has forced the Bush administration to publicly articulate its theories of executive power, theories which are both novel and extreme. The justices on the Supreme Court follow the news just like everyone else. They know what's going on. They know the political context in which their opinions will be received. The suggestion, therefore, that this opinion was not intended to apply to anything other than the isolated facts of the Hamdan case is ludicrous.

First, that's just not how the law and legal precedents operate. What's notable about a legal opinion, particularly a Supreme Court opinion, is its reasoning, not its outcome. But more importantly, the justices in the majority clearly went out of their way to make a statement about executive power and the rule of law. As the dissenting opinions make clear, the Court could have ducked this issue by deciding the case on jurisdictional or abstention grounds. Instead the majority chose to confront the issue of the president's authority head-on. Justice Kennedy's concurring opinion, in particular, seems to be addressed directly to the David Addingtons and John Yoos of the world. It is a direct assault on the legal theories they have espoused.

McCain's suggestion that Hamdan has no bearing on the President's other controversial programs is entirely disingenuous. Unfortunately, I expect others will soon follow his lead, if they haven't already. The good news, though, is that federal judges--who will be the first to hear challenges to these other programs--are bound by the reasoning of Hamdan, not the illogical pontifications of Republican flacks. Thank goodness for that.