Hamdan, the AUMF, and the NSA Domestic Surveillance Program
This spring, a big question in the blogosphere was the legality of the NSA domestic surveillance program, which ended up turning in large part on whether the post-9/11 Authorization to Use Military Force implicitly overrode the prohibition on warrantless monitoring contained in the Foreign Intelligence Surveillance Act.
In light of that debate, one of the more important sections of the Hamdan opinion may be at page 29-30 of the slip opinion, in which the Court considers the argument that the Authorization to Use Mililtary Force implicitly authorized the President to establish military commissions. The Court easily rejected that argument:
The Government would have us . . . find in . . .the AUMF . . . specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, 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 Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (”Repeals by implication are not favored”).
. . . [C]ongressional authorization for military commissions pertaining to the instant conflict derives not only from Article 21 of the UCMJ, but also from the more recent, and broader, authorization contained in the AUMF.FN2
FN2: Although the President very well may have inherent authority to try unlawful combatants for violations of the law of war before military commissions, we need not decide that question because Congress has authorized the President to do so. Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 587 (2004) (Thomas, J., dissenting) (same conclusion respecting detention of unlawful combatants).
I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case—Hamdan’s military commission can plainly be sustained solely under Article 21—but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’” Hamdi, supra, at 582–583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948) ).
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