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View Diary: The Administration's Defense for Illegal Wiretapping is Just Plain Gone (275 comments)

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  •  Even NRO admits that Hamdan makes NSA illegal (3+ / 0-)
    Even an imperial presidency type like Andrew McCarthy (who thinks the president may ignore the War Powers Act) at NRO has admitted that the Hamdan decision shows that the NSA warrantless spying has no basis. Until Hamdan, he had been a strong supporter of the program, as of most excesses by the Bush presidency.

    Here, as I suggested before, is the big problem for the NSA program.  Detention and trial of alien enemy combatants is a conduct-of-war issue; sure, Congress has some legitimate interest, but conduct-of-war is a predominantly executive matter.  The president should not be bound in such areas by statutes that interfere with the conduct of war and compliance with which would require (a) revealing national security information to the enemy and (b) forcing police investigation duties on troops engaged in war-fighting.  In contrast, the NSA program implicates the privacy interests of at least some American citizens.  I personally think the wartime national-security imperatives and the limited nature of the program make the NSA program legal.  Still, I appreciate that Congress's interest in regulating eavesdropping within the United States is greater than its interest in the detention and trial of enemy combatants outside the United States.  Therefore it is a reasonable argument -- however much it chagrins me -- that circumventing FISA is a more weighty matter than arguably circumventing the UCMJ.  I happen to think both circumventions are appropriate, but I'm not the Supreme Court.  And given what the Supreme Court has done in the UCMJ case, what shall I expect the justices to do if the clash of FISA and the NSA program ever gets before them?

    McCarthy goes on the argue that the majority opinion in Hamdan closely follows the reasoning advanced in this letter sent to members of Congress in early January by fourteen constitutional scholars and former government officials. The letter argues that the NSA spying program is illegal. McCarthy did not accept that position at the time, but he acknowledges that the Supreme Court has adopted that view in Hamdan.

    •  Gonzales acknowledges it, too. (1+ / 0-)
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      He just doesn't think they're right, or that they're speaking directly to the NSA spying issue.

      He's going to wait for a direct rebuke of that program. But he also knows there won't be one, becuase he intends to use the "state secrets" privilege to avoid it. Or at least to run out the clock.

      When asked about the Hamdan ruling, he will eventually fall back on the line that he "accepts" that the ruling is what it is. But only with respect to the military tribunals.

      But he never actually says he's going to change what they're doing about it. Just that they'll "work with Congress" on it.

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