On December 16th, 2005 the New York Times published an article (which it had been holding back, the paper said, for a year) disclosing a highly classified NSA program for intercepting the calls of Americans without warrants. The program was authorized by President Bush in the wake of the terrorist attacks of September 11th, 2001. After initial reaction focusing on the fact that the program seemingly circumvents the 1978 Federal International Surveillance Act, or FISA, the White House responded that the program was legal based on the 2001 Joint Resolution of Congress authorizing the use of force against the 9/11 attackers and his inherent power as President.
More recently, Attorney General Alberto Gonzales appeared before the Senate Judiciary committee and Vice President Dick Cheney on PBS's "The News Hour" with Jim Lehrer to defend the program. Questioners, in the Senate and the media, have pointed out that many members of Congress have pointed out that they never imagined the Authorization for Use of Military Force (AUMF) would allow the President to circumvent FISA. The common response by the administration in defending what it is trying to rebrand the "Terrorist Surveillance Program" is that AUMF doesn't mention it, but the Supreme Court, in Hamdi v. Rumsfeld, decided that President had the power to "detain American citizens". On its surface, this sounds like a strong point. However, this is actually just clever spin; so what does
Hamdi actually say?
The case of Hamdi v. Rumsfeld was decided by the Supreme Court on June 28th, 2004. The reason the case was elevated to the Supreme Court was because a petition for habeas corpus had been dismissed by a lower court. However, the issue before the Court was whether or not the President had the authority to detain an American citizen without charge, indefinitely and without the ability to challenge their detention before an impartial judge. The Court ruled 6 - 3 reversing the lower court's decision in denying Hamdi's request. However, the decision goes much further than that.
With its recent rhetoric, the administration is treating the decision as if it was a victory for its policies, a vindication of Presidential powers and a precedent for the legality of its NSA program; this is far from the truth. In fact, on the most basic level, the administration lost this case; it argued against remand and for the 4th Circuit's decision while the Court ruled against it. Justice O'Connor wrote the majority opinion, joined by Chief Justice Rhenquist, and Justices Kennedy and Breyer with Justice Souter writing a concurring opinion joined by Justice Ginsberg. Not only did a majority rule against the administration, the concurring opinion went further and challenged the legality of the detention itself.
The administration uses the phrase "detain American citizens" in a way that sounds very blanket and expansive; as if to say that any American can be plucked off of a street corner and held as an "enemy combatant". The facts of Hamdi, however, concern an American citizen who was captured in Afghanistan when his Taliban unit surrendered to the Northern Alliance and he was turned over to the American military. Hamdi was captured in an active war zone along with an enemy unit; this is certainly far, far more narrow than the administration's language would have us believe.
Some administration officials have gone even further and claimed that even in the absence of the AUMF, notably Vice President Cheney, Hamdi reaffirms that the President's Article II wartime powers allow the President to authorize the NSA program; nothing could be further from the truth. Justice O'Connor, in her majority opinion stated:
The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.
Furthermore, the administration was dealt a succinct slap in the face by Justice O'Connor in stating:
First, the Government urges the adoption of the Fourth Circuit's holding below-that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. [bold added]
Justice O'Connor goes further:
In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.
Therefore, without even looking at the concurring Souter opinion - which holds the detention of Hamdi as an "enemy combatant" illegal - we can see that the Hamdi decision completely flies in the face of the administration's recent claims that it supports the legality of President Bush's decision to circumvent FISA. The decision makes clear that, even in a time of war, there is a role for all three branches of government and, therefore, that the President's powers are not unchecked. Surely, the Attorney General understands the content of the Hamdi decision; what is truly sad is that the Senators on the Judiciary committee, most of whom are lawyers, didn't call him out his misleading characterization of it.