Greenwald on Hamdan

Glenn has been busy with promotion for How Would a Patriot Act, so he hasn't fully weighed in on the recent landmark Hamdan vs. Rumsfeld case until now. Incidentally, I'm glad to say that despite the fact that I am not a lawyer, I seem to have been correct in my analysis of the implications of the case: the holdings of the court decimate the Administrations two arguments for the legality of the NSA program. What I hadn't realized is the following:
As A.L. notes, the President has claimed that the program can only continue if it is reauthorized every 45 days, including by Justice Department lawyers who are required – every 45 days – to certify that there the program continues to be legally authorized. But even from the administration’s perspective — assuming that they actually do recognize their obligation to abide by the Supreme Court’s ruling — there are no remaining legal theories which can claim to bestow unto the President the power to violate FISA by eavesdropping on Americans without warrants. Thus, no administration lawyer could now certify this program as legal.
Of course, now that the justification for the program is gone, it cannot be reauthorized. Luckily, we've got smart lawyers to point things like that out.

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