July 8, 2006
Ever since the Supreme Court in the Hamdan case ruled that the Bush administration's Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, the President has been paying lip service to his "willingness" to comply with that ruling. But the Court's ruling goes far beyond the limited question of whether military commissions are legal. To arrive at its decision, the Court emphatically rejected the administration's radical theories of executive power, and in doing so, rendered entirely discredited the administration's only defenses for eavesdropping on Americans without the warrants required by law.
Actual compliance with the Court's ruling, then, compels the administration to immediately cease eavesdropping on Americans in violation of FISA. If the administration continues these programs now, then they are openly defying the Court and the law with a brazeness and contempt for the rule of law that would be unprecedented even for them

The starting point for any discussion of the illegal eavesdropping program should be the fact that the United States has had a law in place for almost 30 years now which makes it a criminal offense -- punishable by 5 years in prison and a $10,000 fine -- to eavesdrop on Americans without judicial approval and oversight. And everyone, including the Bush administration, acknowledges that they are doing exactly what the criminal prohibits -- that is, eavesdropping on Americans without the warrants required by that law.

So the beginning premise -- acknowledged even by the administration -- is that the Bush administration is engaging in the very eavesdropping expressly criminalized by FISA. For that reason, the Bush administration has been scurrying around to concoct legal theories to justify the President's blatant defiance of the criminal law. To do so, the Bush Justice Department released a "White Paper" on January 19, 2006, which purported to set forth all of the administration's defenses for its warrantless eavesdropping.
Despite its length (42 single-spaced pages), the Justice Department advanced only two arguments to justify the President's law-breaking -- (1) that Congress implicitly authorized the President to eavesdrop in violation of FISA when it enacted a resolution in September, 2001 authorizing the use of military force in Afghanistan and against Al Qaeda; and (2) that the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing -- not the Congress, nor the courts, nor the law -- can limit or regulate those powers.
Both of these defenses -- the only ones which the adminstration has to justify the President's violations of FISA -- were decimated by the Supreme Court in Hamdan -- argument (1) so clearly rejected that no lawyer could continue to advocate it in good faith, and argument (2) almost certainly as discredited. That the Supreme Court's Hamdan ruling constitutes a wholesale rejection of the Bush administration's legal defenses is made clear from the plain language of the Court's reasoning, for reasons I elaborated on here (see points (3) and (7)) and here. Given how clear the Court's decision is on these issues, it is unsurprising that there appears to be a consensus, even among those previously defending the adminstration's warrantless eavesdropping program, that Hamdan constitutes a rejection of those defenses.
As Anonymous Liberal persuasively argues, this situation means that no government lawyer could possibly authorize the continuation of the warrantless eavesdropping program because the Supreme Court has rejected as invalid the only two legal bases which the administration previously cited to justify its warrantless eavesdropping.

As A.L. notes, the President has claimed that the program can only continue if it is reauthorized every 45 days, including by Justice Department lawyers who are required -- every 45 days -- to certify that there the program continues to be legally authorized. But even from the administration's perspective -- assuming that they actually do recognize their obligation to abide by the Supreme Court's ruling -- there are no remaining legal theories which can claim to bestow unto the President the power to violate FISA by eavesdropping on Americans without warrants. Thus, no administration lawyer could now certify this program as legal.

The implications of Hamdan extend at least as much into the political realm as they do the legal realm. Specifically, the unambiguous rejection by the Supreme Court of the administration's legal defenses removes the principal excuse previously offered by Democratic Senators for refusing to endorse Sen. Russ Feingold's Resolution to censure the President for violating FISA.
Senators such as Barack Obama have previously refused to support Sen. Feingold's resolution on the ground that -- even though the President's eavesdropping is without legal authorization -- the President at least believed he was complying with the law because administration lawyers told him that he had legal authority to do this. In explaining why he refused to support Feingold's Censure Resolution, Obama argued:
But my and Senator Feingold's view is not unanimous. Some constitutional scholars and lower court opinions support the president's argument that he has inherent authority to go outside the bounds of the law in monitoring the activities of suspected terrorists. The question is whether the president understood the law and knowingly flaunted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows. Ultimately, this debate must be resolved by the courts.
This "debate" has now been "resolved by the courts." Thus, leaving aside whether that was previously a persuasive reason for refusing to censure the President, it is now plainly the case, in light of Hamdan, that there is no longer any good faith basis left for violating FISA. Ongoing warrantless eavesdropping can only be ordered by the President with a deliberate intent to break the law. After Hamdan, there are no more excuses left for the President to violate FISA, and there is therefore no more excuse left for Democratic Senators to refuse to take a stand with Sen. Feingold against the administration's lawbreaking.
With regard to the President's illegal eavesdropping specifically, and with respect to his claimed power to operate outside the law generally, the Supreme Court's decision in Hamdan changes everything. By rejecting the only two legal defenses previously offered by the administration, the Court has presented the President with a stark choice -- either begin complying with FISA when eavesdropping on Americans, or openly acknowledge that he will defy the Supreme Court.
Journalists should begin asking the Justice Department every day what their legal justification for warrantless eavesdropping is now that Hamdan has rendered frivolous their prior legal arguments in defense of the President. The administration's theories to justify the President's lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled.
The administration's theories to justify the President's lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled.
If we are a country that continues to operate under the rule of law, compliance with the Supreme Court's ruling compels the immediate cessation of the President's warrantless eavesdropping program, as well as what are undoubtedly the other, still-secret programs prohibited by law but which have been justified by these same now-rejected theories of unlimited executive power. Put simply, after Hamdan, there are no more excuses left for the President's refusal to comply with the law.

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