Why AUMF and the Hamdi case do nothing to make the NSA wiretaps legal

[David Farber <dave () farber net>]

Begin forwarded message:

From: Peter Swire <peter () peterswire net>
Date: December 22, 2005 11:09:23 PM EST
To: dave () farber net
Subject: Why AUMF and the Hamdi case do nothing to make the NSA  
wiretaps legal

Dave:

        Here are the key parts of a blog post at
http://swireblog.blogspot.com/ explaining why the Bush Administration is
legally wrong to rely on the Authorization of Military Force and the  
Hamdi
case for its NSA wiretaps:

        The Bush Administration is trying to say that it was authorized by
Congress to do the NSA wiretaps. It is relying on Justice O'Connor's  
opinion
in the Hamdi case to support its position. But that opinion does  
nothing of
the sort. <snip>

The facts are key. Hamdi, after all, was seized on the battlefield in
Afghanistan by the Northern Alliance. The government alleged that Hamdi
"affiliated with a Taliban military unit and received weapons  
training." He
was held as an enemy combatant. Quick quiz - do you think that the
authorization of force allows such a capture? <snip>

OK, that's O'Connor's opinion in Hamdi. Does it support the idea that
Congress intended the Authorization of Military Force to apply to  
wiretaps
of U.S. citizens in the United States? No, for at least four reasons.

Congressional intent. It is clear that Congress intended persons  
captured on
the battlefield to be detained.

History of authorizations of force. O'Connor says detaining  
combatants is
"fundamental and accepted."

Would Congress have agreed at the time? Of course Congress would have
allowed detention of someone fighting in Afghanistan against the U.S.

Foreign battlefield. The discretion of the President is at its maximum
overseas (long legal tradition symbolized by the Curtis-Wright case)  
and in
the theater of war (President as Commander-in-Chief).

All four of these factors are entirely different for wiretaps of U.S.
persons in the U.S.

Congressional intent. Members of Congress have been startled and  
skeptical,
to say the least, at the idea that they authorized these wiretaps. They
never dreamed they were doing so.

History of authorizations of force. Capturing prisoners on the  
battlefield
is a fundamental and traditional part of Congress authorizing the use of
force. Widespread wiretapping of your own citizens is not.

Would Congress have agreed at the time? No. The Administration has  
admitted
they would not have gotten Congressional approval.

Foreign battlefield. In contrast to the foreign battlefield, the  
power of
the President to do searches (wiretaps) of U.S. persons within the  
U.S. is
constrained by the 4th Amendment and numerous laws. Where Congress has
spoken clearly about "the exclusive means" of wiretapping, the President
cannot overrule the law.

In sum, Justice O'Connor's opinion in Hamdi says it is limited to  
detention
of persons seized on the battlefield. It offers no support for the NSA
wiretaps.

Prof. Peter P. Swire
C. William O'Neill Professor of Law
Moritz College of Law of
   The Ohio State University
Visiting Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net




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