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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I’m sure that the Bush administration, if pressed, will argue that domestic surveillance is a “fundamental incident of waging war” in modern times. In contrast, the “fundamental incident of waging war” argument doesn’t work in Hamdan because the Bush administration was attempting to sidestep a process (the UCMJ) that had been specifically intended and used for war.
A separate question is whether the Court would decide the wiretapping issue on the basis of Congress’ intent in drafting the AUMF (which seems to be the majority opinion’s emphasis in the portion of Hamdan quoted above) or whether it would employ a more functional analysis.
The problem with the argument Miriam posits is that FISA, like the UCMJ, is “specifically intended and used for war.” See 50 USC 1811 (“Authorization during time of war”).
As long as we’re on the subject of Justice Thomas’s dissent, here’s a real beaut:
Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.
Though the opinion does not say so in so many words, I think one of the things bothering the majority is that the President’s reading of the AUMF is suspiciously close to an unconstitutional transfer of authority. Congress cannot constitutionaly pass a law transfering all its law-making authority to the president. Yet that’s uncomfortably close to the executive’s interpretation of what the AUMF does.
While Hamdan isn’t a radical departure from the Court’s previous jurisprudence, it is a radical departure from the President’s section 2 claims. For one thing, we now must view many presidential signing statements with the utmost skepticism. I can pretty much guarantee, for example, that the McCain anti-torture provision will pass constitutional muster after Hamdan.
With respect to the AUMF and FISA, I’ve never really bought the executive’s argument and I buy it even less now. Hamdan firmly establishes that the AUMF does not give the President carte blanche even in primarily “military” matters. This is true, a fortiori, with respect to primarily domestic matters like the NSA surveillance program.
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