On June 30th, Senator Schumer sent a letter (pdf, via LawCulture) to the Justice Department. It asked the DoJ to review the status of the Administration’s warrantless wiretapping activity, given that the Hamdan decision eviscerated the justification for the use of data gathering activity expressly placed under the jurisdiction of the FISA court. He says this in the letter:
The reasoning of Hamden, however, calls into question the sweep of the AUMF and raises questions about the legal justifications for the NSA program contained in the DOJ memorandum. In Hamdan, for example, the Administration argued that the Uniform Code of Military Justice (UCMJ) read together with the AUMF authorized a plan for trying suspects before special military tribunals. The majority specifically rejected this reasoning, however, concluding 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 Article 21 of UCMJ.” Hamdan may also bear on your Department’s argument that the President’s Article II powers can override a lawfully enacted statute like FISA.
In light of Hamdan, then,. the issue of whether the President exceeded his lawful authority in approving the NSA surveillance program is an open question now more than ever.
The DOJ response (pdf, same source) essentially repeats the argument that the Court expressly rejected—that the President’s war making powers override Congressional power as defined in Article I of the Constitution.
He also spoke out clearly and strongly on Tuesday’s Hamdan hearing, opening with the following remark:
The Hamdan decision in my judgement shows that the administration's bull in a china approach is actually impeding the war on terror. And so that leads to my first question. I'm glad that the administration finally stands ready ...to work with us. You say: "We'd like to see congress act quickly to establish a solid statuatory basis for the military commision process." That kind of testimony has an Alice in Wonderland quality because where have you been for the last four or five years? (my transcription, video at YouTube)
He then asks the same question he raised in his letter, and he wants to know that a review of the violations of the FISA law are also being reviewed. He gets the same kind of evasive non-answer that is the standard executive branch response to substantive questions asked of this Administration. Glenn Greenwald has repeatedly pointed out that reasserting the powers given to Congress by the Founders is going to be a long struggle. It's important that Senators from both parties speak out--and to have one of our two Democratic neo-cons raising the issue is a step in the right direction.