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Friday, June 30, 2006

The Supreme Court puts the reins on Bush -- for the last time?
Posted by Jill | 7:00 AM
ThinkProgress notes that yesterday's Supreme Court surprising decision that Congress' authorization of use of military force after 9/11 is not a blank check for the Administration to do anything it wants goes far beyond the Guantanamo Bay detainees:

The point here is that the AUMF does not authorize activity that was not specifically contemplated in the text or legislative history. This is incredibly significant. The administration is relying on the AUMF to justify its warrantless wiretapping program. Here’s Alberto Gonzales on 12/19/05:

Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.


The Bush administration doesn’t argue that warrantless wiretapping was something specifically contemplated in the text or by Congress. Rather, the administration argues that it is implied as part of a broad authorization to “use all necessary and appropriate force.”

The Supreme Court has rejected that expansive interpretation. It’s a huge blow to the administration’s legal rationale for warrantless wiretapping.


Glenn Greenwald, who as a constitutional attorney is far more knowledgeable than I on the legal implications, concurs:

The Hamdan decision represents, in my opinion, a fatal blow to the Addington/Yoo theory of executive power. For the last four years, the Bush administration has been advancing the theory, both publicly and in its internal legal memoranda, that, as Commander in Chief, the president has the sole discretion to make all decisions regarding war-related issues, even when a duly enacted statute purports to limit his authority. This legal theory serves as the basis for not only the system of military tribunals at Guantanamo, but also the NSA program and the interrogation methods endorsed by the administration.

But if a statute can place valid and enforceable limits on the president's power to try foreign enemy combatants captured on foreign soil, then can there really be any doubt that a statute can place similar limits on the president's power to conduct surveillance of U.S. citizens within the United States? Of course not.

And the Hamdan opinion completely eviscerates the administration's only other argument in defense of the NSA surveillance program, i.e., that the Authorization for Military Force (AUMF) somehow authorized the circumvention of FISA. The Court notes that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in . . . the UCMJ." All you have to do is substitute "FISA" for "UCMJ" and you know exactly what the Court would say about that argument.

In other words, if there was ever any reasonable doubt as to whether the NSA program is illegal, the Hamdan opinion dispels it. The same is true with respect to the administration's use of "enhanced interrogation techniques."


Given that the court's resident authoritarian totalitarians, Scalia, Thomas, and Alito, dissented and John Roberts recused himself from the case, this decision underscores just how important the Supreme Court really is. Most Americans don't seem to understand that these grey people that presidents appoint to the Court, and who are confirmed by some of the most boring C-SPAN programming imaginable, often hold the fate of the principles on which this country was founded in their hands.

The question now is "What will Congress do?" Given what we've seen from the likes of Arlen Specter of late, in his pathetic attempts to make anything Bush wants to do retroactively legal, and since Trent Lott has already been out there claiming that the big bad terrorists are laughing at us (a fate worse than death if you are a weasel like Trent Lott), and Democrats like Hillary Clinton and Barack Obama are out there trying to prove that "We're just like the Republicans -- only not criminally insane", we can assume that Congress is going to hastily cobble together new laws to give centralized executive authority to this president.

And herein lies the scenario that the Founding Fathers never considered -- that a rabidly partisan Senate and House would put the Cult of Personality surrounding a president and party loyalty ahead of their oaths to uphold the U.S. Constitution and provide checks on unfettered executive power instead of enabling it.

With Congress abdicating its oversight role, one has to worry what is likely to occur should there be another Supreme Court retirement while the lunatic-in-chief is still in office. John Paul Stevens, who wrote this opinion, is 86 years old. Bush is in office until January 20, 2009. That's another 2-1/2 years. If Bush gets a chance to nominate another authoritarian wackjob like Alito to the bench (and don't count on the Democrats to block ANYONE he puts up), the last check on this Administration's march towards a dictatorship is gone.
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