Ex Parte Quirin dealt with a bunch of German sabotuers, some with American citizenship. They had been detained militarily, and been subject to a military tribunal rather than a regular court. They appealed the process, but they lost and they were hanged. The crux of the ruling was two things, 1) they admitted that they were enemy combatants (contra the petitioners in Hamdi and Hamdan, and 2) the 5th and 6th Amendments do not apply to military actions as they were written for anti-criminal law enforcement actions, not military actions. The court there differentiated all military actions from domestic law-enforcement. The 5th and 6th Amendments were mentioned because they were the subject of the appeal, but the logic applies to the 4th Amendment as well.

"What? Is there no protection of our 4th Amendment rights just because we are in a time of war?" No. The intelligence-gathering would have to be directly related to the war, for one thing, and for another thing, recall that the penalty for a 4th Amendment violation is excluding the information gained as evidence.

Get that? That's very key. When the 4th Amendment is violated, the information gathered cannot be used in a court of law.

Which means jack-diddly-squat to the Coast Guard forces intercepting the freighter with the WMD, the Army forces blowing up the factory where IEDs are manufactured, the Air Force bombing the hidden cave system, or the Marines giving AlQeada's middle management a 3AM good morning call with the business end of a rifle.

Ah, but with assymetrical warfare against an enemy such as a terrorist organization, where is the line between criminal activity and war? Two bozos who hold up a liquor store shouting Hezbo propaganda can't be thrown into military detention, can they? No, and that hypothetical was an easy one. I admit that the line can be fuzzy. But a call coming into the US from an AlQeada operative is easily on the military side of that line.

Next we have Hamdi. Hamdi was the most fractured ruling I have ever seen come out of the USSC, and as such one should be careful when citing it. To make a long story short, US forces captured Hamdi on the abttlefield in Afghanistan, Hamdi being a US citizen. US says you are an enemy combatant, off to Gitmo for you. Hamdi says I was an aid worker (with a gun, but it's a dangerous palce), I'm Mr. In-the-wrong-place-at-the-wrong-time. The appellate court had said "We wash our hands, it's a military thing and non-justicable, no 5th Amendment right to a trial, a military tribunal alrady found that you were not an aid worker." This meant indefinite detention for Mr. Hamdi, because since AlQeada is not an arm of a foreign government, no one would ever negotiate for his release at the end of hostilities. The fear of indefinite detention reverberated through the USSC opinion.

Justice Saclia and Justice Stevens ruled together (do you hear a show tune?) that there was no way that a citizen could be detained in the fashion that Mr. Hamdi was without Congress specifically suspending Habeas Corpus rights, as stated in the Constitution, Article I, §9, clause 2. (Hamdi at 554 and 568-569) Justice Thomas took the position that the detainment of enemy combatants was a wholly Article II war-making power, and thus the judiciary could issue no ruling on the matter. Mr. Hamdi was at the mercy of the Executive Branch. (Hamdi at 579) Justices O’Connor, Breyer, Kennedy, and Chief Justice Rhenquist took the position that the Congressional authorization of force allowed for detainment of citizens, but that the 5th Amendment gave citizens a right to challenge their being labeled a combatant as a threshold matter. That challenge would be made in a Federal courtroom with all of the Federal Rules of Evidence applying, but if found as an enemy combatant the Defendant would be then under the jurisdiction of the armed forces, i.e. the Executive Branch, and could potentially be detained indefinitely as Justice Thomas said. Note that this plurality of four justcies is now two, because Chief Justice Rhenquist has passed away, and Justice O'Connor has retired. Finally Justices Souter and Ginsburg found that Congress could write language that would make them agree with the plurality of four, but that they found the language of the AUMF to be too vague to support that proposition, because of a pre-existing statute against detention of U.S. citizens, 18 U.S.C. §4001(a), that was adopted specifically to preclude citizen detentions like those of Americans of Japanese ancestry in World War II. (Hamdi at 542-543)

Ah! Does the Souter-Ginsburg concurrence which says "AUMF too vague to beat pre-existing 18 U.S.C. §4001(a)" allow for an analogy that "AUMF too vague to beat pre-existing FISA?" Well, no. For one thing, only two justices out of nine came to that conclusion. For another, the matter there was indefinite detention, with a strong possibility of never leaving detention, whereas contra here, where the matter is listening to a phone call. The implications for liberty are very, very different.

In section five of Judge Taylor's ruling, Ex Parte Quirin is suspiciously absent, and she repeats her original assertation that the AUMF must deal with FISA. Again, she does not see this as a war-making matter. It part six her First Amendment analogies of speech being chilled by this are dubious at best, and I'm too tired to detail the why I disagree with her cases cited. I will point out that she says on pages 32-33 that FISA explicitly says you can't consider a person an agent of a foreign power solely based on activities protected by the First Amendment, implying that it is their speech content that causes their phone conversation to be recorded, not the identitiy of the person at the other end of the line. Her seventh section is a good first-year law student's guide to the zones of presidential power as explained by the Youngstown Sheet & Tube decision, and as such falls short because of her error in section eight about the AUMF's granting the President the ability to prosecute a war (which in cludes use of intelligence-gathering).

Finally we come to her ninth section, on inherent powers, the one that caused the Wall Street Journal to scornfully title their editorial "President Taylor." She says on page 40 "We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch's actions, and therefore it can only follow that the First and Fourth Amendments must be applicable as well."

Excuse me? Are there two Hamdi cases? What is she talking about? The Hamdi case NEVER fully applied the Fifth Amendment! Not in the Souter-Ginsburg concurrence and not even in the Scalia-Stevens dissent! (Justices Scalia and Stevens made it very clear that for them it was a detention issue as it related to a right of the people in Article I, Section 9, paragraph 2, NOT the 5th Amendment.)

I do not know how Judge Taylor ever got to the conclusion she did.It is baffling to me.

That's my thoughts on the ruling. Thanks for sticking with me on the legal analysis. As for the political fallout...For now I leave that to Hugh Hewitt.

Have a great week!