Supreme Court Decision Threatens Wiretapping Program

The impact of today’s Supreme Court decision (http://www.progressiveu.org/104300-supreme-court-rules-bush-overstepped-authority) on military commissions, according to ThinkProgress, "goes well beyond Guantanamo." The Supreme Court has ruled that the Authorization for the Use of Military Force – issued by Congress in the days after 9/11 – is not a blank check for the administration. The opinion:

Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.

The AUMF does not authorize activity that was not specifically contemplated in the text or legislative history. This is "incredibly significant." Bush has been relying on the AUMF to justify its warrantless wiretapping program, as Alberto Gonzales on said on 12/19/05:

Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

The Bush administration "doesn’t argue that warrantless wiretapping was something specifically contemplated in the text or by Congress. Rather, the administration argues that it is implied" as part of the authorization to “use all necessary and appropriate force.”

The Supreme Court has rejected such an expansive interpretation. It’s certainly a blow to the administration’s legal rationale for warrantless wiretapping.