[JURIST] The US Supreme Court's recent decision in Hamdan v. Rumsfeld [opinion text; JURIST news archive] has not changed the Justice Department's position on the legality of the National Security Agency's anti-terrorism surveillance program [JURIST news archive], according to a senior DOJ official writing to Sen. Charles Schumer (D-NY) [official website]. Assistant Attorney General William E. Moschella [official profile] wrote Monday in response to a letter from Schumer that the Hamdan decision "does not affect our analysis of the Terrorist Surveillance Program for several reasons," although the DOJ is "carefully considering the ramifications of the decision." The DOJ concluded in a Jan. 19 paper [PDF text] that the "NSA activities are … constitutionally permissible and fully protective of civil liberties."

The Supreme Court held in Hamdan that the 2001 Authorization for Use of Military Force (AUMF) [PDF text] that was passed by Congress allowing the president to use "all necessary and appropriate force" against those responsible for the 9/11 attacks did not expand or alter the authorizations for military commissions [text] contained in the Uniform Code of Military Justice (UCMJ). Therefore, the court reasoned, the military commissions [DOD materials; JURIST news archive] as constituted at Guantanamo Bay [JURIST news archive] exceeded the authority granted to President Bush by Congress.

In his Monday letter to Schumer, Moschella said that Hamdan nonetheless did not cast doubt on the legality of the NSA program because the Foreign Intelligence Surveillance Act of 1978 (FISA) [text; FAS materials], unlike the UCMJ, contains a provision [text] that "expressly contemplates that Congress may authorize electronic surveillance through a subsequent statute without amending or referencing FISA." Thus, the relevant precedent was not Hamdan but Hamdi v. Rumsfeld [opinion text], a 2004 case in which the Supreme Court held that the AUMF authorized the president to detain an American citizen classified as an enemy combatant, despite a previous statute providing that "[n]o citizen shall be imprisoned or otherwise detained … except pursuant to an Act of Congress." Read Moschella's letter to Schumer.