Hamdan and the NSA dispute

JB

In particular, Hamdan undermines the Administration's arguments for the NSA's power to engage in domestic surveillance. As you may recall, the Administration offered two arguments for why it did not have to conform with the Foreign Intelligence Surveillance Act (FISA). The first is that the September 18th, 2001 Authorization of the Use of Military Force (AUMF) provided independent statutory authority to spy on citizens outside of the limits in FISA; the second was that FISA is unconstitutional to the extent that it limits the President's Article II powers as Commander-in-Chief to engage in wartime surveillance. (Note that FISA already has built-in exceptions for wartime which the NSA program does not comply with.)

Hamdan undermines both of these arguments. The President could-- and did-- argue that the AUMF gave him authority to establish military commissions any way he liked. Second, the President could argue that he had inherent authority under Article II to establish military commissions under whatever rules he chose and that to the extent that Congress limited his discretion it acted unconstitutionally. Therefore courts should construe all Congressional statutes (and the Geneva Conventions) to avoid clashing with the President's discretion.

The Court rejected both of these positions in Hamdan. It held that "Neither [the AUMF or the Detainee Treatment Act] expands the President's authority to convene military commissions. . . .[T]here is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 ("Repeals by implication are not favored")." "Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the `Constitution and laws,' including the law of war."

If the AUMF is silent about the issue of military commissions, it is equally silent about expanding Presidential power to engage in domestic surveillance. As before, repeals by implication are not favored. Instead, Hamdan suggests that there is Presidential power to engage in domestic surveillance within the scope afforded by Congress, i.e., within FISA itself.

Kennedy's concurrence is equally important on this point: "[T]he President has acted in a field with a history of congressional participation and regulation. . . .While these laws provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action-- a case within Justice Jackson's third category [where Presidential power is at its lowest ebb], not the second or first." The NSA program also occured in a field with a history of congressional participation and regulation, indeed, a field of congressional regulation that occured in response to a history of Presidential abuses of power. Kennedy's argument, based on Youngstown, is thus equally applicable to the NSA program: Where the President goes outside FISA, he is acting at the lowest ebb of his powers.

What about the President's inherent powers under Article II as Commander-in-Chief? Don't they override Congressional limitations? No, said the Court in Hamdan in a footnote: "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise."

Put another way, when we say that the President has inherent authority to do something, we don't mean that his authority is competely unchecked. Rather, we might mean only that as a default rule he can act on his own without Congressional authorization. That default rule is particularly important in cases of emergency. But if Congress enters the field under its various powers in Article I, section 8, the President must exercise his authority within the rules that Congress provides.

Thus, in 1978 Congress created a comprehensive statute to regulate domestic surveillance used to gather foreign intelligence, namely FISA. FISA specifies when the President may engage in surveillance of American citizens, and it provides for a brief exception at the beginning of war to give the President time to request additional authorization. The President's inherent authority to engage in surveillance incident to warfare does not trump FISA; rather, the default rule is that he may collect foreign intelligence as an natural incident of his powers as Commander-in-Chief if Congress does not act. But when Congress does act, he must work within the laws Congress provides.

To be sure, the Bush Administration might try to argue that the power to engage in foreign inteligence surveillance is importantly different from the power to try detainees by military commissions. The former, but not the latter is so centrally part of the President's core powers that Congress may not restrict it in any way. Therefore although it would be within Congress's "proper exercise of its own war powers" to limit military commissions, it would not be within the proper scope of Congress's powers to limit electronic surveillance of American citizens. But after Hamdan, I wouldn't bet on that particular proposition.