Supreme Court Ruling Casts Even More Doubt on NSA Surveillance Program

Washington, D.C. – Today, the Supreme Court ruled 5-3 in Hamdan v. Rumsfeld that the President did not have the authority to set up the “military commissions” in Guantanamo Bay, Cuba and that they are invalid.
In analyzing the Authorization to Use Military Force (AUMF) -- passed by Congress just days after the September 11th attacks -- to determine whether Congress provided separate and new authority to establish military commissions, the Court concluded that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ."
It is equally plain that the Congress did not intend to amend the Foreign Intelligence Surveillance Act ("FISA") when it passed the AUMF. As Schiff stated:  “Since the Court has now ruled that the Authorization to Use Military Force ("AUMF") did not even provide the authority for the President to establish the military commissions to try Osama Bin Laden's bodyguard, how can the same measure be read to authorize the wiretapping of Americans on U.S. soil without court order?”
Schiff has introduced the bipartisan "NSA Oversight Act" with Rep. Jeff Flake (R-AZ) that would:

  1. Reiterate Exclusivity of Current FISA and Wiretap Laws - states that FISA and the federal criminal wiretap statutes shall continue to be the exclusive means by which domestic electronic surveillance may be conducted.
  2. Clarify Military Force Statute - makes clear that the Authorization to Use Military Force (AUMF), passed days after the September 11th attacks, does not provide an exception to FISA laws.
  3. Require Congressional Action - makes clear that current laws apply unless Congress amends the laws or passes additional laws regarding electronic surveillance.
  4. Require a Report on the Extent of the Wiretapping Program - requires classified disclosure to Congress of information about U.S. persons who have been the subject of any such warrantless electronic surveillance.