Hamdi v. Rumsfeld and the domestic surveillance
In Hamdi, the issue was whether a US citizen caught in combat in Afghanistan could be held without due process, even though existing law required an act of Congress to authorize imprisonment. The Court held that the AUMF authorized that detention:
There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.I see a lot of limits there. I see limits on categories and on place. The fact that he was actively and obviously engaged in combat on behalf of people singled out by Congress's authorization of military force is fairly good reason to argue that Congress intended the President to be able to hold Hamdi.
They did not grant the President overwhelming power to hold Hamdi. Battlefield detention is not intended as revenge or punishment, only as a way of preventing a combatant from returning to combat, and the detention was limited to that purpose.
The Court went on to say:
we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. [my emphasis]That last bolded part is of particular relevance here. The President's position is that he can tap any phone he wants, regardless of individual liberties of American citizens. The Court specifically rejects that claim, and rejects the claim that Congress cannot regulate the executive's behavior in wartime.
The issue of the detention of Jose Padilla is more relevant to this situation. Padilla is an American citizen captured on American soil, and not actively engaged in combat. While the 4th Circuit has upheld his detention in military custody, the Supreme Court has not. The administration's handling of that case indicates some concern over their ability to win that case.
And the issue here is not detention, it's the involvement of the courts. On that matter, the court found that Hamdi had a right to file a writ of habeas corpus and to the protections of the courts, as do non-citizens detained in Guantanamo Bay. It is that protection which also extends to phone taps, the right to court oversight of government seizures, and the courts do not deny Hamdi's or Padilla's right to that protection.
Furthermore, the Court's grant of power in Hamdi is sure to be broader than it would be on the domestic surveillance. Hamdi was alleged to be an enemy combatant. While that term is ill-defined, it does imply a finding that he's an enemy and engaged in combat. The domestic surveillance targeted people with "clear links" to terrorist groups. That's obviously a looser term, and is less likely to trigger language in the AUMF. Hence, stricter scrutiny will fall on surveillance of the latter class than actions against the former class, which brings us back to the second quotation, rather than the first.
It is further worth noting that these sections, the ones granting access to the courts, are the ones which enjoyed a 6-3 majority. The part granting the president the power to detain American citizens only got 4 votes. Souter and Ginsburg would have tossed the whole thing out, holding:
The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.Even with Alito on the Court (a doubtful proposition itself, these days) that leaves 5 votes to oppose warrantless surveillance of American citizens.
This argument gets to a useful distinction Publius makes between the nature of executive war power versus its scope. Hamdi is about the scope of war power, how broadly the president can exercise his powers as C-in-C. The arguments cited in Carter and Clinton era executive orders are arguments about the nature of presidential power, what the President can do if no one says otherwise. And he can tap phones without warrants, search houses, etc. That's what Presidents, Congresses and the Courts all think.
The issue is what the president can do when someone does say otherwise. To quote Youngstown Steel (cited above):
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. …We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.FISA is the expressed will of Congress. If the AUMF was meant to override FISA, it doesn't say so, which leaves us in the implied category, which means we get into intent, and Congress specifically didn't grant the broader powers Bush asked for. That means we're solidly in category 3, and the President's power is at its lowest ebb.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. …
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. …
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
When Orin Kerr and others argue that the surveillance was not unconstitutional, they are referring to category 1's use of the term. That analysis is whether this program could, if it were the act of the "Federal Government as an undivided whole," be constitutional. Existing caselaw is clear that the 4th amendment doesn't cover wartime surveillance of enemies outside the US, and leaves the surveillance of citizens with the US who are calling out (the situation at hand here) murky at best. But it's murky because FISA was enacted as those issues began to arise.
FISA means that the President's actions do not "personify the federal sovereignty." Nor is there an absence of the grant or denial of authority. That's what existed when Carter and Clinton issued their disputed memos, but then Congress clarified the law, restricting federal authority.
Which puts us in category three, and the President must obey all the laws and all the Constitution's clauses, including those giving Congress power over military affairs and those requiring the President to "take care that all the laws be faithfully executed."
To be absolutely clear: In the absence of Congressional action, the President has the power to order these sorts of searches. That is within the nature of his power. But Congress acted, and put those actions outside the scope of his power, just as it put the right to strip Hamdi of habeas corpus outside the scope of his power.