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.  

Last week, I asked Steven Bradbury, Acting Assistant Attorney General, about this very issue in the Judiciary Committee.  He said – big surprise – that he didn’t think that the Hamdan decision would affect the warrantless wiretapping program.  Clearly, the Administration is going to try to brush this off, but this issue is too important, and the law is too clear, and I am going to keep demanding a straight answer.  

Yesterday I wrote a letter to the President and Attorney General Gonzales urging them to reconsider the Administration’s position about the legality of the NSA’s warrantless wiretapping based on the Hamdan decision.  I specifically urged them to consider the implications of Hamdan when they conduct their periodic reauthorization of the wiretapping program, which DOJ has indicated occurs approximately every 45 days.  

The Administration’s legal defense of its warrantless wiretapping program has always been threadbare, but with the Hamdan decision its argument isn’t just threadbare any more – it’s just plain gone.  

Hamdan underscores how this Administration has played fast and loose with the Constitution and the law, and why the President should be censured for authorizing the illegal wiretapping program, for misleading the public both before and after it was revealed, and for failing to inform the appropriate members of Congress about it, as required by law.  We have to demand that this Administration, and this President, protect our Constitution and our values as we protect our country.  I am going to keep raising this issue – in fact, I plan on asking the Attorney General about it this morning when he comes before the Senate Judiciary Committee.  So stay tuned and thanks to all of you for keeping the heat on this Administration to own up to its mistakes and abide by the rule of law.