In response to a letter from Senator Schumer seeking the Administration's view of the NSA domestic surveillance program in light of the Court's decision in Hamdan, the Deparment of Justice has submitted this letter, in which it contends:
-- That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);
-- That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions);
-- That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation).
There has been a lot of talk about Hamdan being the modern-day Youngstown. Youngstown, however, had the advantage of a President with a modicum of modesty.