The Los Angeles Times does something very sneaky in a piece analyzing the Hamdan case. See if you can figure it out. I’ll bold a phrase or two, just to give you a hint:
In claiming broad latitude to act, Bush has relied on the original authorization Congress granted for conducting the war on terrorism. But the Supreme Court specifically said that act contained no explicit authorization to ignore existing laws on judicial procedure and hinted it might take the same position on other assertions of executive authority on terrorism — potentially including spying on domestic communications and financial transactions.
In other words, the article suggests, the Supreme Court hinted that Bush acted illegally in devising that Swift terror finance tracking program — you know, the one that we here at the L.A. Times patriotically helped to bring to the public’s attention.
Dream on, Los Angeles Times! Dream on!
Look, guys. I know you’re starting to think you screwed up by revealing the Swift program. But get real. You’re using the Hamdan opinion as some kind of mystical hint by the Supreme Court that the Swift program is illegal?
The Hamdan opinion?!?!
What a ridiculous, sad, pathetic, desperate stretch this is.
OK, let’s get technical for a second. Just a second. (Sorry, but it’s necessary.) As I understand it, the legality of the administrative subpoenas to Swift turns on obscure principles relating to the interpretation of a Congressional statute called the Right to Financial Privacy Act. See the comments to this Orin Kerr post for details — in particular this comment. The central issue was whether the Swift consortium was a “financial institution” within the meaning of the statute.
As the original New York Times article on the Swift program noted, government lawyers concluded it was not a “financial institution” after all:
After an initial debate, Treasury Department lawyers, consulting with the Justice Department, concluded that the privacy laws applied to banks, not to a banking cooperative like Swift. They also said the law protected individual customers and small companies, not the major institutions that route money through Swift on behalf of their customers.
By contrast, the legality of military tribunals turned on completely unrelated points of law, having to do with the Geneva Convention, the AUMF, and other legal provisions having absolutely nothing — nada, zilch, zip, zero — nothing to do with the Swift program.
To equate the two issues is to perceive them at such a high degree of generality that the similarities become functionally meaningless.
It’s arguable that you could read the Supreme Court’s apparently narrow interpretation of the AUMF in Hamdan as bearing on the legality of the NSA program — because (as I have previously argued) one of the major arguments for the legality of that program depends on an expansive (though I believe reasonable) reading of the AUMF. Orin Kerr has details here.
But suggesting that it bears on the legality of the Swift program? Wishful thinking, L.A. Times.
Now here’s the part I find doubly interesting: who contributed to this piece? Peter Wallsten, Richard B. Schmitt . . . and Doyle McManus.
Is that the same Doyle McManus who got ripped to shreds on Hugh Hewitt’s show for his pathetically lacking defense of his newspaper’s publication of the Swift story?
Yup. Same guy.
All of a sudden, it all makes sense. Now the desperate stretch to misinterpret Hamdan as an endorsement of the disclosure of the Swift program can be seen for what it is: a despairing grab for legitimacy on the part of a newspaper trying to recover from the Bad Journalistic Call of the Century.
I understand why they’d want to try such a sneaky stunt. But I’m not going to let them get away with it.