In the Domestic Surveillance hearings today, Gonzales and republican Senators continually claim that the case of Hamdi v. Rumsfeld is precedent for the contention that the Authorization for Use of Military Force (AUMF) authorizes the president to spy on Americans.
This has gone essentially unchallenged by the Dems, but it's easy to prove it's wrong - the Dems should step up and shoot down this canard . . . because Hamdi actually stands for the rule that there must be independent review of probable cause - by a court or other neutral tribunal - for any detention or wiretap undertaken without a warrant.
Learn why on the flip . . .
The republican reasoning is this: in Hamdi, the Supreme Court said the AUMF authorized the President to detain a US Citizen without a warrant, even though a prior Congressional statute had made such warrantless detentions illegal. Therefore, wiretapping, which is a much lesser intrusion than detention, must also be allowed without a warrant under the AUMF, even though the FISA statute seems to make such warantless spying illegal.
But this ignores the real holding of Hamdi, which is that due process requires giving any citizen held in the US as an enemy combatant a meaningful opportunity to contest the probable cause for that detention before a "neutral decisionmaker". Thus, the President can detain a citizen, but there must be opportunity for independent review of the detention.
So let the repubs cite Hamdi, and the Dems should cite it right back: where is the independent review of whether there is probable cause to wiretap a specific individual, as required by Hamdi??