Justice Stevens' very important opinon in Hamdan -- which reads to me very much like a cri de couer from the Greatest Generation, of which JPS is a proud member, to the curent administration and its relatively youthful legal operatives, about just how this nation should conduct itself in wartime -- constitutes a challenge not just to military tributnals but to the theory of presidential war powers that the Bush White House has been pressing since the September 11 attacks. So far, most of the post-decisional focus on the political ramificaton focuses on what Congress will now do about authorizing military tribunals since the opinion places no constitutional limits on the congress giving the president everything he wants. That's no doubt just the post-Hamdan focus the Administration wants, figuring it can get pretty good legislation, and make the Dems look weak if they fight him. But precisely because the decision is a historic one on war powers generally, it also has direct implications for the NSA wiretapping program's legality. And Congress should press the White house on just that point.
I have argued before how that issue of the NSA program's legality might be made ripe for judicial review, and that courts alone were likely to place real limits on the presdent's expansive theories. But now, after Hamdan, we've got the next best thing to direct review of the president's NSA's arguments. We have an analogous decision seeming to reject them decisively. Doesn't that mean the Administration's Office of Legal Counsel is now obliged to revist the lawfulness of that program. And doesn't that mean some Senators should IMMEDIATELY ask them to to do just that?
Ridicoulous to ask? Why? After all, when Jack Goldsmith was head of the office, we now know, he famously render nonoperative the most extreme commander in chief opinions issued by that office regarding torture. Shouldn't the new olc head, who made all kinds of nice sounding noises about his reasonablness when he was recently confirmed, consider doing the same with regard to the wiretapping program. Isn't he obliged to consider that possibility if he is faithful to the job? And if he does revist it, is there any argument left for that program being lawful?
After all, the adminstration presents two claims in defense of the NSA program's legality. First. it argues that the the Authorization to Use Millitary Force Congress enacted right after 9/11 wiped away the pre-exisitng statute requiring warrants for wiretapping, namely the Foreign Intelligence Survelliance Act. But that theory as to how to construe the AUMF's in light of pre-existing stautory restrictions is the very one that the court rejects in Hamdan. It holds that the stautory restrictions contained in the Uniform Code of Military Justice (UCMJ), governing the constitution of military tribunals, remain fully binding even though the AUMF was subsequently enacted. If anything, the limitations in ther UCMJ are less clear than those set forth in FISA, so I do not see how the adminstration can any longer rely on its statutory contention that the AUMF implicitly overrides FISA and thus authorizes the NSA program. Second, the Adminstration argues that the President can disregard FISA, even if the AUMF did not wipe it away, pursuant to his constitutional authority as commander-in-chief to obtain intelligence even when a statute precludes him for doing so in the manner he wishes. Perhaps the Administration wants to argue that Hamdan does not reoslve whether the president can override such a statutory restriction, even though Justice Kennedy's concurrence appears to hold that the president lacks such power when the Congress has by statute set down contrary rules in advance and even though Justice Breyer seems to say the same thing, and even though Justice Stevens, Souter, and Ginsburg would no doubt all agree. But unless it does so, or has some other way of wriggling out of Hamdan's clutches, I can't see what the arugment for the legality of the program is post-Hamdan. Can you?
So. i think, a Senator or two should forthwith write the administration a letter asking that very question. The answer would be illuminating to say the least and would give us a sense whether the President has really given up on his extreme constitutional theories or not. A non-answer would be illuminating, too, and would not, i think, be sustainable with a press fully engaged with this separatin of powers thing.
Finally, such a letter would usefully shift the focus from where the Administraiton wants -- on whether Democrats in Congress will give the President what he wants as to military tribunals for 15 accused terrorists (the administraiton will no doubt argue that the new legislaiton should make clear that conspiracy should be an authorized offense, and that the defendant should have no right to be present, reuqirements that kennedy in his concurrence suggests may not even be required by geneva, thereby adding to the political dfficulty of opposing legislation on those lines) -- to where it doesn't, whether the President can any longer justify an extra-judicial surveillance program that affects thousands of Americans and that seems to have been carried out in a manner that the Supreme Court's most recent ruling on war power suggests is impermissible because it has been clearly prohibited by a pre-existing statute.