The Washington Post pronounces itself unconvinced by the Bush administration’s legal defense of the NSA intercept program, which it calls an “end-run.” The Post rejects the administration’s reliance on the congressional Authorization for the Use of Military Force (AUMF), which allows the president to “use all necessary and appropriate force” to prevent “any future acts of international terrorism against the United States.” In doing so the Post attempts to work around the Supreme Court’s ruling in Hamdi which, as I noted yesterday, found that AUMF implicitly allows the president to detain U.S. citizens captured on the battlefield as enemy combatants, even though AUMF says nothing specific about that particular matter. Hamdi supports the argument that AUMF authorizes the president to use traditional and accepted incidents of force, and these “incidents” might well include warrantless electronic surveillance to intercept enemy communications.
The Post tries to distinguish Hamdi on the grounds that, prior to passing AUMF, Congress had already enacted a detailed law regarding domestic surveillance in time of war, namely FISA. This was not the case with respect to detaining captured U.S. citizens, the issue in Hamdi. The Post concludes that “the vague wording of AUMF can’t reasonably be read to implicitly trump FISA.
But the Post, in undertaking its own “end-run,” overlooks the fact that FISA contains an exception for surveillance authorized by other statutes. Thus, if AUMF authorizes the NSA program (even if implicitly) — and Hamdi suggests that it very well might — then the program can be viewed as authorized by another statute. In that case, the Post’s concern about AUMF “trumping” FISA is a red-herring because the statutes are not in conflict — both permit the president’s action.
The Post stresses that if the administration’s view is accepted, it would call into question Congress’ ability to prevent the president from doing a host of things the Post does not want the president to do. But the fact that the administration’s position conflicts with the Post’s agenda (an agenda that would limit our ability to learn what terrorists are up to, and thus increase the likelihood of a successful attack on the U.S.) is no excuse for its refusal to analyze fully and fairly the merits the administration’s legal position.
UPDATE: Reader Dan McGuire writes:
Actually, Hamdi also involved a specific statute, 18 U.S.C. s 4001(a), which provides “(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The Court ruled that the AUMF trumped 4001(a), but not the right to habeas corpus.