Friday, July 14, 2006

The NSA, FISA and Hamdan: Response to DOJ from Scholars and Former Officials

Marty Lederman

I'm honored to be part of a diverse group of constitutional scholars and former government officials who have joined together to write a series of letters to congressional officials in which we argue that the recently disclosed NSA domestic eavesdropping program is unlawful. Our first two letters, sent earlier this year, were responsive to two memoranda issued by the Department of Justice. Those four documents, along with an introduction that David Cole and I wrote, are collected in a recent issue of the Indiana Law Journal, see 81 Ind. L.J. 1355 (2006)¸ which the American Constitution Society has helpfully republished online. (See also this post.)

As I noted a few days ago
, last Friday DOJ wrote a letter to Senator Schumer in which it asserts that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program."

In a letter we sent to the Hill this morning, we respond to that DOJ letter, and argue that "not only does Hamdan 'affect' the analysis, it significantly weakens the Administration's legal footing. The Court in Hamdan addressed arguments regarding the military commissions that are very similar (in some respects identical) to the DOJ’s arguments regarding NSA spying, and the Court’s reasoning strongly supports the conclusion that the President's NSA surveillance program is illegal."

(NOTE: One of our co-signatories on the earlier letters, Professor Walter Dellinger, did not sign or participate in the drafting of this most recent letter for reasons unrelated to the substance of the letter.)


In letters like this it usually helps to have a brief "executive" summary. Senators are busy people, the chance that anyone there will read 10 pages of sophisticated legal argumentation is pretty much zero. Some of them don't even read the stuff they get to vote on.

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