the hamdan decision is a big deal. but one of it's biggest effect may not be on the detainees in guantanamo. court's reasoning in hamdan demolishes the bush administration's main argument for the legality of its the warrantless wiretap program.
to review, after the program came out in december, the justice department released a memo (pdf) laying out it's legal justification for the program. as i said at the time, the arguments they made amounted to flimsy crap. in essence, the administration argued that the authorization to use military force (AUMF) passed after september 11th effectively amended the FISA law making an exception that allowed the president to ignore it. the problem was that the AUMF doesn't say anything about FISA or surveillance. the administration nevertheless argued that surveillance of american's telephone calls was implicitly part of using force in other countries. the bush administration's argument was not just weak (any time you start relying on a word like "implicit" you know you're stretching at least a little bit), it's actually a really odd argument for an administration that supposedly champions "strict constructionism" to make.
anyway, as think progress and glenn greenwald note, the supreme court in hamdan specifically rejected the argument that the AUMF implicitly amended the legal requirements for a military commission because the text of the AUMF itself makes no mention of any such amendment. the same logic would mean that the AUMF didn't give the president any implicit authority to engage in otherwise illegal surveillance that also isn't mentioned in the AUMF.
the administration has a backup argument to justify its surveillance program--it claims that in times of war the executive has the inherent authority to ignore the laws he feels gets in his way. but that theory was already rejected by the court in 1952 in youngstown v. sawyer (for a good summary of what the case means, again i turn to glenn).
justice kennedy's concurring opinion in hamdan applied the youngstown framework to hold that inherent presidential authority was at it's "lowest ebb" with regard to treatment of detainees because congress already spoke on the issue. in the hamdan case "congress speaking" was the ratification of the geneva conventions and the passage of the uniform code of military justice. but again, because of the existence of the FISA law congress has clearly spoken on that issue as well.
in other words, the hamdan decision knocks the legs out from under the bush administration's primary legal argument for the warrantless surveillance program. and kennedy's concurring opinion suggests that the current court wouldn't think much of its backup argument either. the administration's already weak justification of the program got even weaker. considering that there are several legal challenges to the surveillance program currently pending, hamdan might prove to be the nail in the program's legal coffin.*
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* of course, because this is a 5 vote decision, this all goes out the window if bush gets to replace one of the five majority justices.
