Tuesday, July 11, 2006
Well, Now It's Clear: Hamdan's Just a Bump in the Road
As I noted the other day, virtually all observers agreed that the Court's decision in Hamdan appeared to tear the legs out from under the dual justifications that the Department of Justice has offered in support of the legality of the recently revealed NSA domestic electronic surveillance program. Since then, Cass Sunstein, once perhaps the most surprising defender of the Department's views, came awfully close on this blog to shutting the door on the legal defense, and even Andy McCarthy, perhaps the program's most vociferous supporter, lamented today that "Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program."
This is evidently *not* an administration that's going to rethink its notions of "humane," etc. on the basis of Hamdan.
By the time such issues get before the Court again, Bush should have his neo-Republican majority in place. Maybe we'll get a lively dissent from Kennedy, Souter, and Breyer.
Oh, the next round may come sooner than that: Al Odah and Boumedienne have yet to be decided by the D.C. Cir.
As for OLC, here is Bradbury's prepared statement to the Judiciary Committee today...
Testimony of Steve Bradbury, Acting AAG, OLC (2006.07.11)
As for Hamdan being a "modern day Youngstown," I have thought that to be hyperbole. Rather, it seems to me that everything Justices Stevens and Kennedy wrote about the constitutional issue had been well established in Youngtown 54 years ago.
It should surprise no one that the court majority applied Justice Jackson's Youngstown framework and found that the President's inherent war powers are regulable by Congress -- or that the minority did not dispute this principle. Jackson's Youngstown framework, as adopted and applied in later cases including Dames & Moore and Hamdi, is well settled law and is embraced by every current justice. Even Thomas' dissent, focusing purely on the threshhold statutory issues, adopted Jackson's analytical framework.
A radical theory has been advanced during the Bush administration, pushed by Cheney, Addington and Yoo, that brazenly ignores the Youngstwon precedent. But that theory never has gained traction in the courts. It is largely because Bush's partisan apologists, such as Andrew McCarthy, believe their own propaganda and have been successful promoting it politically that this is even perceived to be an issue.
There has been little doubt in my mind -- before and after Hamdan -- that if Bush's constitutional theory were presented squarely to this Supreme Court, even the "conservative" bloc would join in rejecting it 8-1 or 9-0.
That is why the adminstration's entire legal strategy on the NSA matter is to avoid judicial review of this constitutional question at all costs.
Is it true that the recent analysis of U.S. v. Grubbs, 547 us (Mar. 21, 2006), 04-1414 controls the legality of The Program?
Delineating the standard for probable cause needed to issue an anticipatory warrant to search the house of a suspect who would receive child porn in the mail, J. Scalia writes:
"Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered? though for any single location there is no likelihood that contraband will be delivered.)
"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs ?there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."
The occurrence of the "triggering condition" — successful delivery of child porn by the USPS — would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied. Grubbs at 3–7.
It seems a warrant-issuing court (even a secret one, presumably) must believe that a party on the phone is actually a terrorist or that some other crime will occur (e.g. RICO, conspiracy), not just that there are terrorists who use phones. After all, there are some pedophiles somewhere who receive mail but you still need a warrant to search.
Or would Bush answer that he doesn't need a warrant at all for the reasons in USDOJ's memo to Sen. Schumer?
AUMF is another aspect of the Octodragon.
Read more about it here:
Come slay with me...
Err, I think J. Posner gets at my point better than _Grubbs_:Post a Comment
"A court might even hold that a surveillance 'program,' as distinct from the surveillance of specific individuals, was a 'general warrant,' which the Fourth Amendment forbids."