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Context of 'July 8, 2006: Lawyer: ‘Hamdan’ Ruling Leaves No More Arguments for Legality of NSA Surveillance Program'

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Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. [Electronic Frontier Foundation, 9/27/2001; Legal Information Institute, 11/30/2004] On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. [US Senate, 9/14/2001; Senator Jane Harman, 2/1/2006]

Entity Tags: Foreign Intelligence Surveillance Court, New York Times, Foreign Intelligence Surveillance Act, US Department of Justice, Church Committee

Timeline Tags: Civil Liberties

New York Times headline from article revealing NSA surveillance.New York Times headline from article revealing NSA surveillance. [Source: CBS News]The New York Times reveals that after the 9/11 attacks, President Bush granted the National Security Agency (NSA) secret authorization to eavesdrop on Americans and others inside the US without going through the Foreign Intelligence Surveillance Act (FISA) court to obtain legal warrants (see Early 2002. The administration justifies its actions by claiming such eavesdropping, which includes wiretapping phones and reading e-mails, is necessary to find evidence of terrorist activities, and says the nation needs the program after the 9/11 attacks exposed deficiencies in the US intelligence community’s information gathering process, and because of what they characterize as the “handcuffing” of US intelligence agencies by restrictive laws. The Times has had the article for over a year; the White House prevailed on the Times not to publish its findings for that time, arguing that publication would jeopardize continuing investigations and warn potential terrorists that they were under scrutiny. Many believe that the White House wanted to delay the publication of the article until well after the 2004 presidential elections. The Times delayed publication for over a year, and agreed to suppress some information that administration officials say could be useful to terrorists. (Less than two weeks before the article is published, Bush tries to convince the Times not to print the article at all: see December 6, 2005.) Two days after the Times publishes its article, Bush will acknowledge the order, and accuse the Times of jeopardizing national security (see December 17, 2005). The NSA program eavesdrops without warrants on up to 500 people in the US at any given time, officials say; the overall numbers have likely reached into the thousands. Overseas, up to 7,000 people suspected of terrorist ties are being monitored. Officials point to the discovery of a plot by Ohio trucker and naturalized US citizen and alleged al-Qaeda supporter Iyman Faris to bring down the Brooklyn Bridge with blowtorches as evidence of the program’s efficacy. They also cite the disruption of an al-Qaeda plot to detonate fertilizer bombs outside of British pubs and train stations by the program. But, officials say, most people targeted by the NSA for warrantless wiretapping have never been charged with a crime, and many are targeted because of questionable evidence and groundless suspicion. Many raise an outcry against the program, including members of Congress, civil liberties groups, immigrant rights groups, and others who insist that the program undermines fundamental Constitutional protections of US citizens’ civil liberties and rights to privacy. Several other government programs to spy on Americans have been challenged, including the Federal Bureau of Investigation (FBI)‘s surveillance of US citizens’ library and Internet usage, the monitoring of peaceful antiwar protests, and the proposed use of public and private databases to hunt for terrorist links. In 2004, the Supreme Court overturned the administration’s claim that so-called “enemy detainees” were not entitled to judicial review of their indefinite detentions. Several senior officials say that when the warrantless wiretapping program began, it operated with few controls and almost no oversight outside of the NSA itself. The agency is not required to seek the approval of the Justice Department or anyone else outside the FISA court for its surveillance operations. Some NSA officials wanted nothing to do with a program they felt was patently illegal, according to a former senior Bush administration official. Internal concerns about the program prompted the Bush administration to briefly suspend the program while Justice Department officials audited it and eventually provided some guidelines for its operations. A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the FISA Court, helped spur the suspension, according to officials. Kollar-Kotelly questioned whether information obtained under the program was being improperly used as the basis for FISA wiretap warrant requests from the Justice Department. Some government lawyers say that the Justice Department may have deliberately misled Kollar-Kotelly and the FISA court about the program in order to keep the program under wraps. The judge insisted to Justice Department officials that any material gathered under the program not be used in seeking wiretap warrants from her court. The question also arose in the Faris case, when senior Justice Department officials worried that evidence obtained by warrantless wiretapping by the NSA of Faris could be used in court without having to lie to the court about its origins. [New York Times, 12/15/2005]

Entity Tags: US Supreme Court, George W. Bush, US Department of Justice, Iyman Faris, National Security Agency, New York Times, Al-Qaeda, Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly

Timeline Tags: Civil Liberties

President Bush acknowledges that he issued a 2002 executive order authorizing the National Security Agency (NSA) to wiretap US citizens’ phones and e-mails without proper warrants, and accuses the New York Times of jeopardizing national security by publishing its December 15 article (see Early 2002 and December 15, 2005). Bush says he was within the law to issue such an order, which many feel shatters fundamental Constitutional guarantees of liberty and privacy, but accuses the Times of breaking the law by publishing the article. Bush tells listeners during his weekly radio address that the executive order is “fully consistent” with his “constitutional responsibilities and authorities.” But, he continues, “Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” He admits allowing the NSA to “to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations” in a program designed to “detect and prevent terrorist attacks.” Under the law, the NSA must obtain warrants from the Foreign Intelligence Surveillance Act (FISA) Court, but after Bush’s executive order, it was no longer required to do so. Bush justifies the order by citing the example of two 9/11 hijackers, Khalid Almihdhar and Nawaf Alhazmi, who, he says, “communicated while they were in the United States to other members of al-Qaeda who were overseas, but we didn’t know they were here until it was too late.” Because of the unconstitutional wiretapping program, it is “more likely that killers like these 9/11 hijackers will be identified and located in time, and the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.” Bush also admits to reauthorizing the program “more than thirty times,” and adds, “I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.” [CNN, 12/16/2005] Bush fails to address the likelihood that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, George W. Bush, Khalid Almihdhar, Foreign Intelligence Surveillance Act, Nawaf Alhazmi, Al-Qaeda

Timeline Tags: Civil Liberties

During a press conference, President Bush is asked if he will order an investigation into the leak that revealed the NSA’s domestic surveillance program (see December 15, 2005). Bush says he has not directly ordered an investigation, presuming the Justice Department is handling the matter, but he calls the leak “a shameful act for someone to disclose this very important program in a time of war.” And he implies that the leak, and the New York Times’s decision to print the resulting article, is treason: “The fact that we’re discussing this program is helping the enemy.… But it is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.” When asked why he “skip[ped] the basic safeguards of asking courts for permission for the intercepts,” he answers: “[R]ight after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that’s important. We’ve got to be fast on our feet, quick to detect and prevent. We use FISA still—you’re referring to the FISA court in your question—of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect. Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am—I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.… [T]he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress” (see September 14-18, 2001). A reporter asks why “has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?” Bush responds by reiterating the point that the program is “limited in nature to those that are known al-Qaeda ties and/or affiliates.” He then reiterates another point: he believes he has the authority to bypass the law. He “share[s] the same concerns” about civil liberties that members of Congress have expressed (see December 16, 2005).” However, his reassurances that domestic calls are not being monitored are not absolute. “[I]f you’re calling from Houston to [Los Angeles], that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.” He is asked: “You say you have an obligation to protect us. Then why not monitor those calls between Houston and LA? If the threat is so great, and you use the same logic, why not monitor those calls? Americans thought they weren’t being spied on in calls overseas—why not within the country, if the threat is so great?” Bush replies: “We will, under current law, if we have to. We will monitor those calls. And that’s why there is a FISA law. We will apply for the right to do so. And there’s a difference—let me finish—there is a difference between detecting so we can prevent, and monitoring. And it’s important to know the distinction between the two.” He concludes, “I just want to assure the American people that, one, I’ve got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we’re guarding your civil liberties.” [White House, 12/19/2005]

Entity Tags: US Department of Justice, George W. Bush, New York Times, National Security Agency

Timeline Tags: Civil Liberties

Jonathan Alter.Jonathan Alter. [Source: Publicity photo via Greater Talent Network]Reporter and political pundit Jonathan Alter writes that President Bush’s attempt to kill the New York Times domestic wiretapping story (see December 15, 2005 and December 6, 2005), which the Times delayed for over a year at the White House’s request, is not an attempt to protect national security, as Bush will say in his response to the article (see December 17, 2005), but “because he knew that it would reveal him as a law-breaker.” Alter continues, “He insists he had ‘legal authority derived from the Constitution and Congressional resolution authorizing force.’ But the Constitution explicitly requires the president to obey the law. And the post-9/11 congressional resolution authorizing ‘all necessary force’ in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.” Alter is puzzled that Bush felt the need for the program when the 1978 Foreign Intelligence Surveillance Act (see 1978) “allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact.” Alter says that only four of “tens of thousands” of FISA requests have ever been rejected, and, “There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.” He concludes: “[Bush] knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story. …We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.” [Newsweek, 12/21/2005]

Entity Tags: Abraham Lincoln, Bush administration (43), National Security Agency, New York Times, George W. Bush, Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Act, Jonathan Alter

Timeline Tags: Civil Liberties

Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee that the new “reasonable belief” standard for wiretaps is just another term for “probable cause.” Gonzales’s claim is legally false. The difference between the two standards is significant: while administration officials must present relatively compelling evidence that a US citizen has ties to US-designated terrorist organizations or is involved in terror plots to meet the “probable cause” standard for authorizing electronic surveillance, the “reasonable belief” standard is far more lenient. Gonzales also repeats for the committee President Bush’s claims that the Foreign Intelligence Surveillance Court (FISC) isn’t “agile” or “nimble” enough to assist the Justice Department and the US intelligence community in finding and arresting terrorists, a claim that FISC judges find baffling. FISC routinely approves almost all warrant requests, and FISA allows the government to conduct surveillance for 72 hours before even applying for a warrant. Additionally, FISC has consistently worked with the government to expedite requests and streamline the warrant-issuance procedure. For example, in March 2002, when the FBI and Pakistani police arrested al-Qaeda operative Abu Zubaida, agents found that almost all of Zubaida’s contacts were already being monitored under FISA warrants or through international surveillance efforts (see March 28, 2002). One government official says that the Zubaida discovery gave them “some comfort” that surveillance efforts were working as needed. [Washington Post, 2/9/2006]

Entity Tags: Foreign Intelligence Surveillance Court, Abu Zubaida, Al-Qaeda, Alberto R. Gonzales, US Department of Justice, Senate Judiciary Committee

Timeline Tags: Civil Liberties

Fourteen law professors and former federal officials send a letter criticizing the Justice Department’s recent legal arguments supporting the legality of the secret NSA surveillance program (see December 19, 2005 and December 21-22, 2005). The letter is signed by law professors Curtis A. Bradley, a former State Department legal advisor; David Cole; Walter Dellinger, a former acting solicitor general and assistant attorney general; Ronald Dworkin; Richard Epstein; Harold Koh, a former assistant secretary of state and a former Justice Department official; Philip B. Heymann, a former deputy attorney general; Martin Lederman, a former Justice Department official; Beth Nolan, a former presidential counsel and a former Justice Department official; William S. Sessions, the former director of the FBI; Geoffrey R. Stone; Kathleen M. Sullivan; Laurence H. Tribe; and William Van Alstyne, a former Justice Department attorney. The letter is couched in legal language, but clearly states that the signees consider the NSA surveillance program entirely illegal: “[T]he program appears on its face to violate existing law.” The signees consider and reject the Justice Department’s argument that Congress “implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda” in 2001 (see September 14-18, 2001), writing: “[T]he AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first 15 days of war.” The signees also reject the Justice Department’s argument that the president’s “inherent constitutional authority as commander in chief to collect ‘signals intelligence’” is not prohibited by FISA. The signees conclude that the Justice Department has failed “to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the president—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.” [Marty Lederman, 1/9/2006; Center for Democracy and Technology, 1/9/2006 pdf file]

Entity Tags: Harold Koh, William S. Sessions, William Van Alstyne, Curtis Bradley, Beth Nolan, Geoffrey Stone, US Department of Justice, Walter Dellinger, Richard Epstein, Martin (“Marty”) Lederman, Laurence Tribe, Kathleen M. Sullivan, Ronald Dworkin, National Security Agency, Philip Heymann, David D. Cole

Timeline Tags: Civil Liberties

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” [US Department of Justice, 1/19/2006 pdf file; Glenn Greenwald, 1/20/2006; Washington Post, 1/20/2006]
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” [Washington Post, 1/20/2006]
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” [Savage, 2007, pp. 315]
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Entity Tags: National Security Agency, James Bamford, Steven Bradbury, US Department of Justice, Griffin Bell, Senate Judiciary Committee, Glenn Greenwald, Foreign Intelligence Surveillance Act, Alberto R. Gonzales, Arlen Specter, George W. Bush, Congressional Research Service, Charlie Savage

Timeline Tags: Civil Liberties

Senator Russell Feingold (D-WI) tells reporters that he intends to push through legislation that would censure President Bush because of his domestic surveillance program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006). “What the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping has to be answered,” Feingold tells an interviewer. “Proper accountability is a censuring of the president, saying, ‘Mr. President, acknowledge that you broke the law, return to the law, return to our system of government.‘… The president has broken the law and, in some way, he must be held accountable.… Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president. And, hopefully, he will acknowledge that he did something wrong.” Senate Majority Leader Bill Frist (R-TN) calls Feingold’s proposal “a crazy political move.” The Senate Intelligence Committee, following the Bush administration’s lead, has rejected some Democrats’ call for a full investigation of the surveillance program (see February 1-6, 2006). Instead, the committee has adopted a Republican plan for a seven-member subcommittee to conduct oversight. Feingold says his censure motion is not “a harsh approach, and it’s one that I think should lead to bipartisan support.” Frist, however, says: “I think it, in part, is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the president of the United States as commander in chief who is out there fighting al-Qaeda and the Taliban and Osama bin Laden and the people who have sworn—have sworn—to destroy Western civilization and all the families listening to us.… The signal that it sends that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world.” Only once in history has a president been censured by Congress: Andrew Jackson in 1834. In the House, Representative John Conyers (D-MI) is exploring the idea of introducing impeachment legislation against Bush. [New York Times, 3/12/2006; Associated Press, 3/12/2006] Feingold says on the Senate floor: “The president has violated the law and Congress must respond. A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable.” Most Congressional Democrats want nothing to do with either Feingold’s or Conyers’s legislative ideas, and some Republicans seem to be daring Democrats to vote for the proposal. Vice President Dick Cheney tells a Republican audience in Feingold’s home state of Wisconsin, “Some Democrats in Congress have decided the president is the enemy.” Democratic leaders in the Senate thwart an immediate vote as requested by Frist, and Senator Richard Durbin (D-IL) says he is not sure the proposal will ever come to a vote. Senate Minority Leader Harry Reid (D-NV) says he does not support it and has not read it. Senator Joseph Lieberman (D-CT) makes a similar assertion. In the House, Minority Leader Nancy Pelosi (D-CA) refuses to support such a proposal, saying in a statement that she “understands Senator Feingold’s frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress. Both the House and the Senate must fully investigate the program and assign responsibility for any laws that may have been broken.” [Associated Press, 3/14/2006] Former Nixon aide John Dean testifies in support of Feingold’s censure motion (see March 31, 2006). However, the censure motion, lacking support from Democratic leaders and being used by Republicans as a means to attack Democrats’ patriotism, never comes to a vote. [Klein, 2009, pp. 84]

Entity Tags: Joseph Lieberman, George W. Bush, Bush administration (43), Bill Frist, Harry Reid, John Dean, Russell D. Feingold, Senate Intelligence Committee, Richard (“Dick”) Durbin, Richard (“Dick”) Cheney, Nancy Pelosi, John Conyers

Timeline Tags: Civil Liberties

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Civil liberties lawyer and columnist Glenn Greenwald states that the recent Supreme Court ruling in Hamdan v. Rumsfeld (see June 30, 2006), finding that the Bush administration’s Guantanamo Bay military commissions violate both federal law and the Geneva Conventions, also proves that the NSA’s warrantless wiretapping program is illegal (see December 15, 2005). “To arrive at its decision,” Greenwald writes, “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,” the Foreign Intelligence Surveillance Act (see 1978). “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.” Greenwald notes that FISA prohibits any surveillance of American citizens without judicial approval and oversight. The Bush administration has already admitted to conducting just such surveillance (see December 17, 2005 and December 21, 2005), and President Bush has even stated his intention to expand the program (see December 19, 2005). The Justice Department and a number of administration officials have attempted to claim the NSA surveillance program is both legal and necessary (see December 19, 2005, December 19, 2005, December 21-22, 2005, and Early 2006); Greenwald writes that the Hamdan decision “decimated” those claims, a conclusion shared by a number of legal experts (see January 9, 2006). Moreover, he writes, there is no remaining excuse for Democratic senators not to endorse Senator Russ Feingold’s resolution to censure Bush for violating FISA (see March 12, 2006 and After). The argument advanced by, among others, Senator Barack Obama (D-IL), that Bush believed he was complying with the law because his lawyers told him he was in compliance, is no longer relevant in light of Hamdan, Greenwald argues. “[T]here 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.” Bush has two clear choices, Greenwald writes: either to comply with FISA or openly defy the Supreme Court. “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.” [Crooks and Liars, 7/8/2006]

Entity Tags: Geneva Conventions, Barack Obama, Bush administration (43), Foreign Intelligence Surveillance Act, Glenn Greenwald, US Department of Justice, US Supreme Court, George W. Bush, National Security Agency

Timeline Tags: Civil Liberties

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