In his testimony today, Attorney General Gonzales repeatedly mentioned the Supreme Court's decision in Hamdi case as supporting the administration's warrantless wiretapping program.
Importantly, the Supreme Court has already interpreted the force resolution in the Hamdi case. There the question was whether the president had the authority to detain an American citizen as an enemy combatant and to do so despite a specific statute that said that no American citizen could be detained except as provided by Congress.
A majority of the justices in Hamdi concluded that the broad language of the force resolution gave the president the authority to employ the traditional incidents of waging war. Justice O'Connor explained that these traditional powers include the right to detain enemy combatants and to do so even if they happen to be American citizens.
Not so fast, sir.
Yaser Hamdi, to recap, had been captured on the battlefield in Afghanistan and sent to Guantanamo, where it was discovered that he was an American citizen. The administration asserted that it could hold him indefinitely as an enemy combatant.
Superficially, the situation resembles the wiretap case. There is a statute, the Non-Detention Act of 1971, that says Americans can't be detained "except pursuant to an Act of Congress." The administration claimed that the Authorization for the Use of Military Force (AUMF) resolution constituted such an Act, and so it was not violating the Non-Detention Act.
Similarly now, the administration claims it is not violating FISA, because the FISA law makes room for other statutes to authorize what it doesn't authorize. The adminstration again claims the AUMF does the job.
Gonzales even makes Hamdi seem like overkill:
If the detention of an American citizen who fought with Al Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to Al Qaida phone calls into and out of the country in order to disrupt their plots is not?
Just in case we missed it the first time, Senator Sessions repeats this talking point:
Would you not agree that listening on a conversation is less intrusive than putting an American citizen in jail?
Translation: So why should you care if we're listening to your phone calls when the Supreme Court already said we could put you in jail?
Except that it didn't. Here's what Justice O'Connor (writing for the plurality) actually said in Hamdi:
There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the September 11] attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
By a 5-4 vote (with Scalia on our side, interestingly enough), the Court thought the AUMF stretched far enough to allow the detention of an American citizen who had carried a gun on a battlefield for our enemies. They didn't allow scooping up Americans by the thousands because two or three of them might be associated with Al Qaeda.
The thousands of Americans who appear to be victims of the administration's warrantless wiretapping have not carried guns for the enemy. The vast majority of them have nothing to do with Al Qaeda. They are not "individuals Congress sought to target in passing the AUMF."
What's more, the Court ruled that Hamdi still had due process rights -- the adminstration could not unlaterally slam the door on him without giving him "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." O'Connor allowed that this might happen in a special court, like a military tribunal.
In the wiretap situation, a special court already exists. The whole point of FISA is to provide the "neutral decision-maker" that keeps the government from running roughshod over an individual's rights. So I see nothing in the Hamdi decision to indicate that the Supreme Court would bless the administration's going around FISA.
So yes, the Supreme Court did interpret the force resolution in the Hamdi case. But it didn't interpret it the way Gonzales does.
For more details, see my diary summarizing the Hamdi case.