Media left unchallenged Bush's claim that NSA wiretapping program has backing of Supreme Court

››› ››› JOSH KALVEN

In a January 23 speech defending his warrantless domestic surveillance program, President Bush claimed that Congress' 2001 authorization of force, upheld by the Supreme Court in Hamdi v. Rumsfeld, establishes his authority to conduct the program. But numerous legal authorities have objected to Bush's claim that the high court affirmed his authority to wiretap U.S. residents without a warrant. Despite these objections, several news outlets repeated Bush's claim without challenge.

In his January 23 speech, President Bush claimed that the Authorization for Use of Military Force (AUMF), passed by Congress in 2001 and upheld by the Supreme Court in Hamdi v. Rumsfeld, establishes his authority to conduct his warrantless domestic surveillance program. But the nonpartisan Congressional Research Service (CRS) and numerous legal experts have expressed strong objections to Bush's claim that the high court affirmed in Hamdi his authority to eavesdrop on the international communications of U.S. residents without a warrant. They have noted that the court, in fact, rejected the expansive interpretation of the AUMF now being put forward by the administration. More specifically, they have pointed to the court's rejection in Hamdi of certain powers central to Bush's defense of the domestic surveillance program. Despite these concerns, several news outlets repeated or aired Bush's claim without challenge.

Since the public disclosure of the domestic eavesdropping program, the Bush administration has asserted that the AUMF implicitly authorized the president to order the National Security Agency (NSA) to intercept the international communications of U.S. residents without obtaining warrants pursuant to the Foreign Intelligence Surveillance Act (FISA). Although the Supreme Court has never ruled on the specific issue of warrantless surveillance for foreign intelligence purposes, administration officials have argued that the high court's decision in Hamdi supports this rationale.

The petitioner in the case, Yaser Hamdi, had been captured in Afghanistan and transferred back to the United States, where he was detained as an "enemy combatant." Hamdi challenged his detention on the grounds that that the 1971 Non-Detention Act (50 U.S.C. § 811) prohibits the detention of a U.S. citizen except pursuant to an "act of Congress." The plurality opinion, written by Justice Sandra Day O'Connor, declared that such detention is a "fundamental incident of war" and agreed with the government's position that the power to detain Hamdi fell under the "necessary and appropriate force" authorized by Congress in the AUMF, therefore fulfilling the requirements of the Non-Detention Act. But the court also rejected the administration's claim that it could deny the citizen-detainee the opportunity to challenge his detention and could hold him for the sole purpose of intelligence-gathering. Despite the court's having imposed these limitations, supporters of the NSA program cite Hamdi as affirmation of the president's plenary authority under the AUMF.

Specifically, the administration has argued that the warrantless surveillance of U.S. residents by the NSA, like the detention of Hamdi for the duration of the conflict, represents a "fundamental incident of war" and, as such, is also authorized by the AUMF. Attorney General Alberto R. Gonzales first laid out this argument in a December 19 press conference:

GONZALES: So, even though the authorization to use force did not mention the word "detention," she [O'Connor] felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the president to use all necessary and appropriate force."

For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance.

The Justice Department subsequently put forward this line of reasoning in two documents outlining the administration's legal rationale for the NSA program: a December 22 letter to select members of Congress and a January 19 "white paper." More recently, Bush referred to Hamdi in his January 23 speech defending the NSA wiretapping program:

BUSH: Recently there was a Supreme Court case called the Hamdi case. It ruled the authorization for the use of military force passed by the Congress in 2001 -- in other words, Congress passed this piece of legislation. And the court ruled, the Supreme Court ruled that it gave the president additional authority to use what it called "the fundamental incidents of waging war" against Al Qaeda.

I'm not a lawyer, but I can tell you what it means. It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It's an -- you've got the power to protect us, but we're not going to tell you how. And one of the ways to protect the American people is to understand the intentions of the enemy.

The Bush administration's characterization of Hamdi has left the false impression that the court simply agreed with the broad powers asserted by the president in the case -- as long as such powers were deemed "necessary and appropriate" to fighting terrorism. But as CRS noted in its January 5 review of the administration's legal rationale for the NSA program, "the Court [in Hamdi] appears to have relied on a more limited interpretation of the scope of the AUMF than that which the Administration had asserted in its briefs."

Indeed, the plurality opinion imposed numerous limitations on the powers originally sought by the Bush administration, as Robert A. Levy, a senior fellow in constitutional studies at the libertarian Cato Institute and a Federalist Society member, noted in a question-and-answer exchange with Federalist Society member David B. Rivkin Jr.:

LEVY: The government insisted that a U.S. citizen could be detained indefinitely, without access to counsel, without a hearing, and without knowing the basis for his detention. The Court plurality agreed that a U.S. citizen can be detained. But only "Taliban combatants;" only with access to counsel; only after "notice of the factual basis for his classification;" only after a hearing; and only if not "indefinite detention for ... interrogation." How much narrower could the holding be?

Moreover, the powers asserted by the president but rejected by the court in Hamdi were likely more relevant to the NSA program than the one authority -- indefinite detainment -- that the court upheld. Particularly relevant is the court's refusal to grant the administration the power to suspend Hamdi's right to due process. The plurality opinion declared that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens" and "reject[ed] the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts." More specifically, O'Connor wrote:

It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

[...]

With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant.

[...]

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

By contrast, Bush's domestic surveillance program specifically excludes the role of any court to provide judicial oversight.

Also relevant to the current issue is the plurality's prohibition against "indefinite detention for the purpose of interrogation." In its January 5 report, CRS noted that only Justice Clarence Thomas appeared to believe that the AUMF -- which authorizes the use of "necessary and appropriate force" -- covered intelligence gathering activities in Hamdi:

While the collection of intelligence is also an important facet of fighting a battle, it is not clear that the collection of intelligence constitutes a use of force. ... While five Justices were willing to accept the government's argument that the detention of enemy combatants captured on the battlefield is a vital aspect of war-fighting, Justice Thomas alone indicated his agreement with the government's argument that wartime detention is also necessary for intelligence purposes. Justice O'Connor agreed that the law of war supports detention of enemy combatants to prevent their return to the battlefield, but agreed with the petitioner that "indefinite detention for the purpose of interrogation is not authorized."

As Harvard law professor Laurence Tribe wrote in a January 6 letter to Rep. John Conyers (D-MI), this aspect of the plurality opinion "yields added support" to the case against the Bush administration's use of Hamdi:

Hamdi in fact yields added support for the conclusion that the AUMF cannot provide the requisite authorization. For the Hamdi plurality agreed "that indefinite detention for the purpose of interrogation," even of conceded enemy combatants, "is not authorized" by the AUMF. 124 S.Ct. at 2641 (emphasis added). It follows a fortiori that indefinite subjection of American citizens who are not even alleged to be enemies, much less enemy combatants, to ongoing invasions of their privacy in the United States for purposes of obtaining valuable information is not authorized either.

Furthermore, Tribe and other legal experts have pointed to a crucial difference between the authority upheld by the court in Hamdi and the authority asserted by the administration with regard to the NSA program. They have noted that while no "statutory scheme" exists that specifically addresses the detention of Americans as enemy combatants, Congress has established a complex statute to cover the gathering of foreign intelligence on domestic soil. In a January 3 report requested by Rep. Jane Harman (D-CA), former CIA general counsel Jeffrey H. Smith explained how this distinction undermines the administration's reliance on Hamdi:

As discussed below, the courts are disposed to support broad assertions for Presidential authority in areas where Congress has acted.

[...]

In Hamdi, Congress had not established a preexisting statutory scheme governing the detention of enemy combatants. As a result, Congressional intent could be gleaned from the AUMF alone. With respect to the NSA surveillance program, Congress has established a complex statutory scheme, through FISA and its amendments, governing electronic surveillance of U.S. persons for the purposes of gathering foreign intelligence information. There is no indication in the AUMF that Congress intended to authorize the President to ignore an existing statute that established a comprehensive scheme for conducting domestic electronic surveillance.

In a letter published in the Febuary 9 edition of The New York Review of Books, 14 prominent constitutional scholars and former government officials similarly also took issue with Bush's use of Hamdi by noting the specificity of the existing FISA statute:

It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

Despite these extensive arguments against the administration's reliance on Hamdi -- and the growing number of legal experts putting them forth -- NBC, MSNBC, the Associated Press, the Los Angeles Times, and The Washington Times simply repeated Bush's claim that the Supreme Court had affirmed his authority to conduct the NSA domestic surveillance program. By contrast, a January 24 San Francisco Chronicle article noted George Washington University law professor Jonathan Turley's criticism of Bush's reliance on Hamdi:

Bush said the Supreme Court ruled that Congress gave him wide-ranging powers to wage war on terrorism when it passed a use-of-force resolution against al Qaeda in October 2001.

But critics cite the same Hamdi case as evidence that Bush is breaking the law.

While agreeing that the court ruled the government could detain enemy combatants, George Washington University law Professor Jonathan Turley said the court also "rejected the president's claims of supreme authority and arguments more relevant to the current controversy.''

From a January 23 article by Associated Press staff writer Jennifer Loven:

President Bush pushed back Monday at critics of his once-secret domestic spying effort, saying it should be termed a "terrorist surveillance program" and contending it has the backing of legal experts, key lawmakers and the Supreme Court.

[...]

And he insisted that a recent Supreme Court decision backs his contention that he had the authority to order the program through a resolution Congress passed after the 2001 terrorist attacks that lets him use force in the anti-terror fight.

"I'm not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics," Bush said.

From the January 24 broadcast of NBC's Today:

ANN CURRY (anchor): Today, the Bush administration continues an all-out defense of domestic spying. On Monday, the president claimed warrantless wiretapping has the backing of legal experts, lawmakers, and the Supreme Court. He called it a "terrorist surveillance program." And this morning, Attorney General Alberto Gonzales, one of the architects of the domestic spying program, was made available to defend it. He told me the program has made America safer.

From a January 24 article by Washington Times White House correspondent Joseph Curl:

Critics say the NSA program violates both the Constitution and the 1978 Foreign Intelligence Surveillance Act (FISA), which declares itself "the exclusive means by which electronic surveillance ... and the interception of wire and oral communications may be conducted."

Mr. Bush cited as support for his claims a court case, Hamdi v. Rumsfeld, in which an American citizen whom the government has classified as an "enemy combatant" sued Secretary of Defense Donald H. Rumsfeld.

"The Supreme Court ruled that [the congressional resolution] gave the president additional authority to use what it called 'the fundamental incidents of waging war' against al Qaeda," Mr. Bush said.

From a January 24 article by Los Angeles Times staff writer James Gerstenzang:

In a speech and question-and-answer session, Bush offered his lengthiest public explanation to date of NSA eavesdropping, which the administration has taken to calling the "terrorist surveillance program" since it was revealed in December.

He said a Supreme Court ruling in June 2004 found that a congressional resolution passed shortly after the Sept. 11 attacks gave him the authority to act to protect the country from terrorism.

"It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It said: 'Mr. President, you've got the power to protect us, but we're not going to tell you how.'

From the January 26 edition of MSNBC Live:

PETE WILLIAMS (NBC News justice correspondent): What the president is saying is it doesn't so much -- his argument that FISA is out of date is, not that he can ignore it because it's inconvenient, but because he's got another law to fall back on. And this is the argument they make: that when Congress authorized the use of military force after September 11th, it didn't merely authorize soldiers on the ground and everything that goes with that. That includes, they say, gathering intelligence.

And so they have a legal authority. The FISA law says you have to use just the Foreign Intelligence Surveillance Act methods, and that means getting a court order, unless another statute explicitly authorizes some other way. And what the administration has said is: "We have it." Congress passed the authorization for military force -- that's the "some other way." Now, [MSNBC host] Chris [Matthews], they use an analogy here, one that's untested, in a way, in court. But, they say when Congress authorized the use of military force, it also authorized the administration to detain enemy combatants, to take them back from the battlefield, and hold them without lawyers. And the Supreme Court said -- well, in terms of holding them, yes, that's what the authorization of military force gave them. It gave them the techniques incident to war. And the president says gathering intelligence is just like that.

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