Thursday, December 22, 2005


Why the Hamdi Case Does Nothing to Make the NSA Wiretaps Legal

The Bush Administration is trying to say that it was authorized by Congress to do the NSA wiretaps. It is relying on Justice O’Connor’s opinion in the Hamdi case to support its position. But that opinion does nothing of the sort.

A previous post explained why the NSA wiretaps are illegal. In summary, federal criminal law says that wiretaps by government officials are criminal, “except as authorized by statute.” Next, another part of the law says that Title III (for law enforcement) and FISA (for intelligence) shall be “the exclusive means” for wiretapping U.S. communications. In short, you need a statute, and there are only two statutes.

That is why the NSA wiretaps, without a court order, are illegal. It is simple. In the words of Bob Barr, formerly Republican chair of the House Judiciary subcommittee that oversees wiretap law: “This is just such an egregious violation of the electronic surveillance laws.”

In a letter reported in the media tonight (which is not yet online), the Justice Department argues, mistakenly, that there are actually three statutes. They rely on the Authorization for Use of Military Force (AUMF), passed in the days after the 9/11 attack, to claim that the NSA wiretaps are “authorized by statute.” In press accounts, they have said that Justice O’Connor’s opinion in the Hamdi case, joined by three other justices, is crucial support for that position.

This post explains why the Hamdi case offers no such support.

As Justice O’Connor writes: “The AUMF authorizes the President to use all necessary and appropriate force against nations, organizations, or persons associated with the September 11, 2001, terrorist attacks.” The question was whether Hamdi, a U.S. citizen, could be detained under the AUMF.

The facts are key. Hamdi, after all, was seized on the battlefield in Afghanistan by the Northern Alliance. The government alleged that Hamdi “affiliated with a Taliban military unit and received weapons training.” He was held as an enemy combatant. Quick quiz – do you think that the authorization of force allows such a capture?

Justice O’Connor emphasized that she was answering only “the narrow question before us: whether the detention of citizens falling within that definition is authorized.” The definition of who is covered by the Hamdi opinion: someone who is “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” No mention of wiretaps carried out on U.S. citizens in the U.S.

O’Connor explains why detention of Hamdi fits into anyone’s view of the authorization of force:

“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 those 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.”

OK, that’s O’Connor’s opinion in Hamdi. Does it support the idea that Congress intended the Authorization of Military Force to apply to wiretaps of U.S. citizens in the United States? No, for at least four reasons.

Congressional intent. It is clear that Congress intended persons captured on the battlefield to be detained.

History of authorizations of force. O’Connor says detaining combatants is “fundamental and accepted.”

Would Congress have agreed at the time? Of course Congress would have allowed detention of someone fighting in Afghanistan against the U.S.

Foreign battlefield. The discretion of the President is at its maximum overseas (long legal tradition symbolized by the Curtis-Wright case) and in the theater of war (President as Commander-in-Chief).

All four of these factors are entirely different for wiretaps of U.S. persons in the U.S.

Congressional intent. Members of Congress have been startled and skeptical, to say the least, at the idea that they authorized these wiretaps. They never dreamed they were doing so.

History of authorizations of force. Capturing prisoners on the battlefield is a fundamental and traditional part of Congress authorizing the use of force. Widespread wiretapping of your own citizens is not.

Would Congress have agreed at the time? No. The Administration has admitted they would not have gotten Congressional approval.

Foreign battlefield. In contrast to the foreign battlefield, the power of the President to do searches (wiretaps) of U.S. persons within the U.S. is constrained by the 4th Amendment and numerous laws. Where Congress has spoken clearly about “the exclusive means” of wiretapping, the President cannot overrule the law.

In sum, Justice O’Connor’s opinion in Hamdi says it is limited to detention of persons seized on the battlefield. It offers no support for the NSA wiretaps.

You left out how much the opinion tastes like chocolate, which could have an affect on how it is perceived.
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All excellent points. I'd like to add, however, in support of your position, that the plurality went further to hold that although Hamdi's detention was authorized or intended, that continued or indefinite detention hinged upon some form of due process. The detainee must be given some form of hearing before an independent tribunal, where he can be afforded the opportunity to rebut the facts the President is using to classify him as an "enemy combatant." See Hamdi, 542 U.S. at 533.

I believe that because the Court held (even narrowly) that an individual alleged to be fighting against U.S. forces deserved due process, that ordinary citizens engaged in ordinary day-to-day communications are also entitled to due process. I.e., an independent magistrate must sign the order authorizing a wiretap.
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