I listened to some of the Senate Judiciary Committee's proceedings this morning. Given current political circumstances I feel it's necessary to rely on the Democratic Senators to oppose this policy, since the Republicans are not likely to muster the same level of opposition, considering the partisan issues at hand.
I was a little surprised that the Democratic Senators were not as well prepared to address some of the technical details of the administration's arguments as I had hoped. I did not hear all of the morning testimony, but heard enough to feel the need to send this letter to my home state Senator on the committee (Charles Schumer), and copy the ranking Democrat (Patrick Leahy).
Dear Senator Schumer,
I have been listening to the Judiciary Committee hearings this morning and have been bothered that two points I feel are compelling have so far not been addressed. These are important questions that I would be very interested in hearing Attorney General Gonzalez's answers to.
1) The administration relies on the Hamdi case to validate their interpretation of the AUMF. Hamdi relies on the AUMF trumping 18 U.S.C. 4001. Unlike the FISA legislation, however, 18 U.S.C. 4001 does not contain specific language regarding how the legislation is to be interpreted in relation to a Declaration of War. Since this statute was very broadly worded and did not address the specific situation involved in this instance, the court had broader leeway to interpret the effect of the AUMF on the preceding statute. However, FISA specifically addresses what is to happen in the case of a Declaration of War. FISA explicitly states how FISA should be interpreted in relation to a Declaration of War, and that interpretation is NOT that a Declaration of War trumps FISA. In this regards, there is no reason to believe that the AUMF is different that a Declaration of War. In fact, it is arguable that the AUMF should be interpreted as granting LESS power to the Executive than a formal Declaration of War would.
2) In Hamdi, the Supreme Court upheld the role of an independent third party to review the actions of the Executive. They ruled that Hamdi had the right to have the justification for his detainment reviewed by an independent tribunal, although that tribunal did not have to be formally a part of the federal judiciary -- but it did have to be independent of the Executive. An independent tribunal separate from the formal judicial structure to review Executive actions sounds an awful lot like the FISA court. Why does the administration believe that the correct interpretation of Hamdi is that its actions are not subject to independent review?
Senator, I hope this note reaches you in time to address these questions to the Attorney General, as I believe they represent significant gaps to his legal analysis.
Resident: New York City
Update: I just realized I used the word "Urgent" in the subject line of this e-mail. That probably means it will get rejected by the Senators' spam filters. Sigh...
Update 2: I feel strongly enough that I would at least like to hear the administration's answers to these questions that I just called Senator Schumer's office in D.C. to make sure someone has thought about these issues. A very nice gentleman answered the phone and took down my comments, but I am a little wary that anything will be done with them. Oh well, I tried.
Update 3: I should probably link to my previous discussion of Hamdi.