Via LawCulture, I see that the Justice Department has informed Congress that, in its view, the recent Hamdan decision does not change its views of the legality of the NSA domestic surveillance program. The letter is available here.
The DOJ letter argues that the AUMF continues to authorize the NSA program, despite the opinion in Hamdan, as DOJ believes that the NSA program is more like the detention allowed by the AUMF in Hamdi than the military commissions forbidden in Hamdan. On the Article II issue, the DOJ is sticking to its guns that the one sentence of dicta from the Foreign Intelligence Surveillance Court of Review opinion in 2002 is still the appropriate guide, and that nothing in the Supreme Court’s recent Hamdan decision should be read as upsetting that very important sentence.
The separation-of-powers chess match continues.
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Chess? Given that one branch has the actual weapons; a Congress willing to roll over & play dead or in a pinch to strip jurisdiction whenever it’s asked to; prosecutorial discretion; and a virtually unreviewable classification power, I’d say it’s less chess than Calvinball.
The only thing in Hamdan that could change things is footnote 23 (24?) and that is dicta. I would also note that the footnote was only necessary because Justice Kennedy refused to join the plurality for the portion of the opinion declaring the conspiracy chage invalid. I would also note that U.S. v. Loving, 517 U.S. 148, which is cited in the opinion, totally undercuts that footnote and possibly explains Justice Kennedy’s reluctance to join the part of the opinion declaring the conspiracy charge invalid.
Much more than Calvinball, this is a classic game of Fizzbin.