The Bush Administration Has No Defense for Illegal Wiretapping Now
Tuesday, July 18, 2006

By Senator Russ Feingold
From Daily Kos

With the Administration doing so much to weaken our system of checks and balances, a lot of Americans were heartened to see the third branch of government - the judiciary - stand up to the Administration with the decision in the Hamdan case a few weeks ago. The Supreme Court made it crystal clear that all detainees have basic rights under U.S. and international law, and that the Administration has to scrap its plan to try some detainees held at Guantanamo Bay in military commissions that lacked basic safeguards of fairness.

As many legal thinkers, and some in this community, have pointed out, the Hamdan decision was a rebuke to an Administration that thinks it can make up its own laws. And this decision has ramifications far beyond the issue of detainees. For one thing, Hamdan completely undercuts the Administration's already weak legal argument in defense of its warrantless wiretapping program.

It is clear that the program violates the Foreign Intelligence Surveillance Act (FISA). But Administration officials insisted unconvincingly that the authorization for use of military force (AUMF) from September 2001 had them covered - that this resolution somehow ok'd their warantless wiretapping, even though there is no such language in the resolution, and no evidence to suggest that it was intended to give the President blanket authority to order these warrantless wiretaps.

In Hamdan, the Court made it clear that the Administration can't hide behind the AUMF anymore. The Administration tried to use the AUMF argument in the Hamdan case too - claiming that it authorized military commissions for detainees. But the Court flatly rejected that idea, just as it rejected the idea that the President's inherent authority as Commander-in-Chief trumps the Uniform Code of Military Justice. The bottom line is that the Court was not buying the extreme theories of executive power put forward by the Administration in the military commissions case, and there is no reason to think it that it would buy those same theories when they are used to justify the illegal wiretapping program. ...