Am I Allowed to Ask A Question of the Day?
A bunch of wise legal commentators are discussing, on other blogs, the Justice Department's coy reply to Senator Schumer's letter asking about the impact of the Hamdan decision on the government's theory that the Authorization for the Use of Military Force (AUMF) gave them tremendous powers justifying everything from military commissions to the NSA wiretapping. Just shy of its 2 week anniversary, the question about whether Hamdan's rejection of that argument v/v military commissions doesn't have some resonance in other aspects of the war on terror seems fair.
The response by the Government, of course, was anything but. The legal debate can be followed on Barron and Lederman's posts above, but there is another interesting point here. The Government argues that the AUMF rejection by the Court in Hamdan does not apply to their NSA defense because, basically, warrantless survillance is more clearly an "incident" of warfighting than, well, military commissions.
Um. Really. Because one would think that, actually, detaining and adjudicating the guys you find on a battlefield is more incidental to engaging in war than powers that would permit domestic surveillance not on the battleground. If everything is the battleground (as the Administration has argued), why isn't locking up and doing something with the guys we find anywhere more incidental to war than just listening in on their phone conversations.
Ok, I'm not a soldier but I play one at home occassionally. So, lets assume now that there are powers incidental to warfighting that can be justified by the AUMF. Apparently, its a sliding scale. Lets put killing on the battlefield on the far right; lets put my daughter's pediatrician appointment next week on the far left (just to be safe). Now, domestic wiretapping falls closer to the right side of the spectrum than doing somethnig with those we find on the universal battlefield (good to know, but who knew?).
So, the question: what falls to the left of military commissions now? Anything? Can we envision any agreement by the Administration lawyers that would get anywhere close to the pediatrician?
The AUMF is simply another aspect of the Octodragon...
Read about it here:
http://www.participate.net/node/1878
Come slay with me...
July 12, 2006 2:50 PM | Reply | Permalink
I understood, as much as this layman could, that the Hamdan decision concluded that the administration was authorized by the AUMF to proceed with military actions but was still constrained by Congressional legislation and oversight. The main point seemed to be that the military commissions did not comply with the Geneva Accords, a treaty ratified by Congress, or the UCMJ, regulations enacted by Congress. So, isn’t it a moot point whether the NSA spying is “military” or not since Congress had laws governing the activity (FISA) that were not abided?
July 12, 2006 3:01 PM | Reply | Permalink
A thought: a domestic assasination program would be perhaps more related to the "use of force" than the surveilance program.
However, "related" does not mean "authorized" or "legal".
Are Administration lawyers looking into penumbra of the Constitution and the Congressional resolutions, or this is a zone of total darkness?
One thing is certain: they are much more original than originalist.
July 12, 2006 4:13 PM | Reply | Permalink
It's simple. The executive branch can't unilaterally make the decision that it's legal to skip the judicial branch by not using the FISA court.
Tom
July 12, 2006 5:00 PM | Reply | Permalink
My understanding of the holding of Hamdan is similar to yours, but I haven't read the full case. I would assume, however, that there was dicta in the opinion that offers a nexus for Schumer's inquiry regarding the impact of the AUMF v/v the NSA.
July 12, 2006 5:50 PM | Reply | Permalink
From the same source, Balkin on the political calculus of administration intransigence:
Hints presumably acknowledged: liability, criminal or civil; as in the legal calculus of indictments or claims arising from such liability, conceivably portended by Hamdan. So continue they will until incrementally restrained (or retroactively approved), else answer more quickly, directly, exclusively for the totality of their sins.
See also:
Report on Torture, Center for Constitutional Rights (CCR); July 10, 2006, "citing declassified primary accounts from current detainees and their American attorneys detailing torture and inhumane treatment at Guantánamo Bay prison."
July 12, 2006 8:40 PM | Reply | Permalink
Folks, let's get real. The reason they are fighting tooth and claw in support of the NSA program is because it is a program being used for large-scale surveillance of Americans who have no connection to terrorism. Its targets do, in all likelihood, have connections to the political opponents of the Bush administration.
It's Big Brother, and the shit will hit the fan if the details of these activities ever see the light of day.
July 13, 2006 1:37 PM | Reply | Permalink
There have been reasonably credible reports of the misuse of National Security Letters for ordinary criminal investigation. Do you have any specifics, or is this merely supposition?
--
Howard
*equal opportunity offense to both extremes*
July 14, 2006 4:25 PM | Reply | Permalink