The Bush administration keeps referring to the Hamdi case as being perfectly parallel to the wiretapping case.
Yaser Esam Hamdi, a U.S. citizen, was capture in Afghanistan in 2001 while allegedly fighting with the Taliban. Hamdi claimed he was an aide worker falsely accused of working with the Taliban.
Hamdi had been held without trial and the Supreme Court, in a complicated ruling with no true majority, ruled that under the AUMF, the President has broad powers to detain unlawful combatants. But they did rule that Hamdi had the right to due process, meaning a hearing before an impartial tribunal (although not necessarily a member of the judiciary) to review whether the evidence against him had merit. Normal criminal protections — burden or proof and ban on hearsay, specifically — would not apply.
The administration points to this case because the Supreme Court basically ruled that the Constition gave the President broad war-time powers and the AUMF only implicitly gave the President the authority to detain U.S. citizens indefinitely, while previous legislation had denied that authority. The administration argues that the wiretapping fits the same fact pattern — broad war-time powers, and implicit authorization under the AUMF replacing a previous ban on the practice.
However, the administration glosses over two points.
First, Hamdi was captured overseas, with evidence that he was fighting with an organization that the U.S. had effectively declared war on. This is not a case of someone suspected of talking to someone who might be a member of some organization. This guy took up arms against the U.S. That's got to be different, No?
Second, the Supreme Court upheld the right of due process, albeit with less benefit of the doubt to the defendant. In other words, the court provided for review of the detention by an impartial third-party who is not necessarily part of the formal Federal judiciary. Doesn't that sound very parallel to the FISA court — review of the President's actions by an impartial third party outside of the normal judiciary structure?
Interestingly, the two most conservative members of the court took exactly opposite positions. Thomas sided entirely with the government's position, arguing for the broadest war-time powers for the President, with Hamdi granted virtually no right for review of his case. (Note that Thomas is generally considered the weakest intellect among the justices.) Scalia, on the other hand, argued that the government's only options with regards to detaining a U.S. citizen are for Congress to suspend Habeas Corpus, which it has not done and probably could not do since it requires "rebellion" or "insurrection", or to try Hamdi under every-day, ordinary criminal law.
I guess complex questions of constitutional authority and contradictory legislation sometimes belie political ideology.
Update: Oh, I forgot to mention a couple points. First, Hamdi was held for two years in solitary confinement before he was even allowed to see a lawyer. And this is an American citizen. Also, he never did receive a hearing to review his designation as an enemy combatant, since the administration released him with a slap on the wrist rather than go through that process. (Note, he did lose his citizenship in the process, but that wasn't a big deal to him because he hadn't even know he was a citizen until after he was imprisoned -- having been born in the U.S. but growing up in Saudi Arabia. His captors were the first to point out to him that citizenship is automatic for anyone born within the U.S.)