Hamdan and the NSA Domestic Surveillance Program: What Next?

Marty Lederman

As most of you probably know, I was from the outset not especially persuaded by the Justice Department's statutory defense of the NSA domestic surveillance program. Be that as it may, however, it seems to me that Jack, David Barron, and "Anonymous Liberal" are all correct that the Hamdan decision fairly decisively undermines whatever slight plausibility that argument might previously have enjoyed. (Orin Kerr intimates likewise.)

As David points out, if (as the Court held) the AUMF does not trump the limitations on military commissions that are only vaguely and implicitly lurking in 10 U.S.C. 821 and 836(b), surely that force authorization cannot supersede FISA's express provision that FISA and title 18 prescribe the "exclusive means" of engaging in electronic surveillance, and FISA's specific wartime surveillance provision, which authorized surveillance outside the FISA framework through December 3, 2001, but no later.

If we're all correct about this -- and I haven't seen any argument to the contrary -- then it raises two interesting questions:

1. What will OLC do when -- presumably within 45 days -- the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ. Stay tuned.

2. Will Cass Sunstein finally give up the ghost on his idiosyncratic view that the AUMF can be construed to authorize the NSA program?

I ask this not only because, as far as I know, no legislator has agreed with Sunstein and DOJ that the AUMF provided such authority. (One should be suspicious of any argument about congressional intent that doesn't reflect, well, any legislator's intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.) Nor even because Hamdan has so severely undermined the theory.

No, the main reason I'm curious about Professor Sunstein's current views is that he has just published an article in which he reads Hamdan to confirm the principle that "[i]f the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that."

The Hamdan decision doesn't actually say that, and is not really about that question: The Court's holding does not depend on the absence of clear statutory authorization -- it turns instead on the fact that the President's commissions violated statutory limitations. But more to the point, even if Sunstein's characterization were apt, and clear stautory authorization is necessary in order for the Executive to infringe on personal freedoms, how can Sunstein adhere to his previous view that the vague and general authorization of the AUMF silently authorized the President to act in a way that would otherwise not only infringe on personal freedoms, but also transgress clear pre-existing statutory limitations?
Posted 9:42 AM by Marty Lederman [link]