America... Spying on Americans II

The problem that Specter and Roberts and DeWine are going to run up against is that the Administration has claimed that, due to the 'Unitary Executive Branch,' they will not be bound by any rules that Congress makes. So the proposed 'legistlation' means nothing, because the same theory the President uses to claim that FISA does not bind him, will mean the next bill passed won't bind him either.

Where does Bush derive his 'inherent authority' to conduct foreign surveillance, exactly?

Kornblum:I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully
enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

And:

I would also reiterate that the president doesn't have a carte blanche, that the courts are the arm of government that determines what the president's constitutional authority is.

"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Kornblum, in quotes picked up by the Washington Times.

FISA judges say Bush within law
By Brian DeBose
THE WASHINGTON TIMES
Published March 29, 2006

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Judge Kornblum said before the 1978 FISA law, foreign surveillance was done by executive order and the law itself was altered by the orders of Presidents Ford, Carter and Reagan.

It has been three months since President Bush said publicly that the NSA was listening to phone conversations between suspected terrorists abroad and domestically. The actions raised concerns from Congress and civil liberties groups about domestic spying, but the judges said that given new threats from terrorists and new communications technologies, the FISA law should be changed to give the president more latitude.

Sen. Arlen Specter, Pennsylvania Republican and committee chairman, called the hearing to get advice on his bill that would expand FISA to codify less stringent rules on wiretapping of domestic phone conversations with suspected foreign terrorists and include new technologies like the Internet and satellite communications.

Sen. Patrick J. Leahy, Vermont Democrat, said the Congress should pass new legislation to ease existing restrictions under FISA.

"However, we should not rush to give the administration new powers it has not deigned to request, based on concerns it has not articulated," Mr. Leahy said.

The panel of judges unanimously agreed that the law should have been changed before now to deal with new threats from terrorists and new communications technologies, a point made by Sen. Dianne Feinstein, California Democrat.

"It is confusing that if you take something off of a satellite it is legal, but if you take it off of a wiretap it's not," she said. "We need to include new technology."

Quote:

FISA judges say Bush within law
By Brian DeBose
THE WASHINGTON TIMES
Published March 29, 2006

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Judge Kornblum said before the 1978 FISA law, foreign surveillance was done by executive order and the law itself was altered by the orders of Presidents Ford, Carter and Reagan.

It has been three months since President Bush said publicly that the NSA was listening to phone conversations between suspected terrorists abroad and domestically. The actions raised concerns from Congress and civil liberties groups about domestic spying, but the judges said that given new threats from terrorists and new communications technologies, the FISA law should be changed to give the president more latitude.

Sen. Arlen Specter, Pennsylvania Republican and committee chairman, called the hearing to get advice on his bill that would expand FISA to codify less stringent rules on wiretapping of domestic phone conversations with suspected foreign terrorists and include new technologies like the Internet and satellite communications.

Sen. Patrick J. Leahy, Vermont Democrat, said the Congress should pass new legislation to ease existing restrictions under FISA.

"However, we should not rush to give the administration new powers it has not deigned to request, based on concerns it has not articulated," Mr. Leahy said.

The panel of judges unanimously agreed that the law should have been changed before now to deal with new threats from terrorists and new communications technologies, a point made by Sen. Dianne Feinstein, California Democrat.

"It is confusing that if you take something off of a satellite it is legal, but if you take it off of a wiretap it's not," she said. "We need to include new technology."

Tico, see here for your error:

http://www.able2know.com/go/?a2kjump=http%3A%2F%2Fglenngreenwald.blogspot.com%2F2006%2F03%2Fwhat-fisa-judges-really-said.html

The WashTimes article is full of sh*t. I highlighted one of the major misinterpretatoins above.

Cycloptichorn

Kornblum:I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully
enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

And:

I would also reiterate that the president doesn't have a carte blanche, that the courts are the arm of government that determines what the president's constitutional authority is.

The title of the article, "FISA judges say Bush within law," is misleading. The body of the article itself does not support the statement made in the title. Where is the hearing transcript?

And none of that seems to be inconsistent with the President having the inherent authority, so I fail to see how you conclude the article is "full of sh*t."

Debra_Law wrote:

The title of the article, "FISA judges say Bush within law," is misleading. The body of the article itself does not support the statement made in the title. Where is the hearing transcript?

Subscription only: http://www.fednews.com/transcript.htm?id=20060328t3970

... Judge Kornblum: Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary.

***
The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans.

***
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that.

***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could.

*** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.

***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.

***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that.

Judges Back Court Review of Eavesdropping

WASHINGTON - Five federal judges gave a boost Tuesday to legislation that would bring court scrutiny to the Bush administration's domestic spying program.

At a Senate Judiciary Committee hearing chaired by Sen. Arlen Specter (news, bio, voting record), R-Pa., the judges reacted favorably to his proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

The existence of the warrantless surveillance by the National Security Agency was revealed by The New York Times three months ago.

The judges stressed that they were not offering their views on the NSA operation, which they said they knew nothing about.

But they said the Foreign Intelligence Surveillance Court has operated capably for 28 years and is fully able to protect civil liberties and give the administration all the speed and flexibility it needs to execute the war on terror.

The administration contends the president has inherent war powers under the Constitution to order eavesdropping without warrants.

"I am very wary of inherent authority" claimed by presidents, testified U.S. Magistrate Judge Allan Kornblum. "It sounds very much like King George."

Before word of the warrantless surveillance leaked publicly, the Bush administration revealed it to just eight members of Congress and to the presiding judge on the surveillance court.

The hearing Tuesday focused on Specter's bill. A rival approach, drafted by Senate Judiciary Committee member Mike DeWine of Ohio and three other Republicans, would allow the government to conduct warrantless surveillance for up to 45 days before seeking court or congressional approval.

Senate Intelligence Committee Chairman Pat Roberts, R-Kan., expressed interest in handling legislation on the NSA effort. But the Senate Parliamentarian gave Specter jurisdiction over his bill and DeWine's.

Senate Judiciary Committee member Russ Feingold, D-Wis., has urged censure of the president for authorizing the warrantless surveillance.

Under it, the NSA can monitor international calls — when one party is inside the United States — without first getting court approval. The NSA has been conducting the surveillance when calls and e-mails are thought to involve al-Qaida.

The others testifying before Specter's panel were U.S. District Judges Harold Baker of Urbana, Ill.; Stanley Brotman of Camden, N.J.; John Keenan of the southern district of New York City; and William Stafford of Pensacola, Fla.

The careers of all five judges have been steeped in the work of the secret surveillance court.

In an interview about the program with The Associated Press last week, Specter said administration officials want to do "just as they please, for as long as they can get away with it. I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

Ticomaya wrote:

Debra_Law wrote:

The title of the article, "FISA judges say Bush within law," is misleading. The body of the article itself does not support the statement made in the title. Where is the hearing transcript?

Subscription only: http://www.fednews.com/transcript.htm?id=20060328t3970

From the testimony as linked by Tico:

Quote:

... Judge Kornblum: Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary.

***
The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans.

***
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that.

***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could.

*** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.

***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.

***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Judges on Secretive Panel Speak Out on Spy Program

WASHINGTON, March 28 — Five former judges on the nation's most secretive court, including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law "like everyone else." If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, "the president ignores it at the president's peril."

Judge Baker and three other judges who served on the intelligence court testified at a Senate Judiciary Committee hearing in support of a proposal by Senator Arlen Specter, Republican of Pennsylvania, to give the court formal oversight of the National Security Agency's eavesdropping program. Committee members also heard parts of a letter in support of the proposal from a fifth judge, James Robertson, who left the court last December, days after the eavesdropping program was disclosed.

. . . But the most pointed testimony may have come from a man who was not at the hearing: Judge Robertson.

A sitting federal judge in Washington, Judge Robertson resigned from the intelligence court just days after the N.S.A. program was disclosed.

Colleagues say he resigned in frustration over the fact that none of the court's 11 judges, except for the presiding judge, were briefed on the program or knew of its existence. But Judge Robertson has remained silent, declining all requests for interviews, and his comments entered into The Congressional Record on Tuesday represented his first public remarks on the controversy.

In a March 23 letter in response to a query from Mr. Specter, the judge said he supported Mr. Specter's proposal "to give approval authority over the administration's electronic surveillance program" to the court.

The Bush administration, in its continued defense of the program, maintains that no change in the law is needed because the president has the inherent constitutional authority to order wiretaps without warrants in defense of the country.

Mr. Specter's proposal seeks to give the intelligence court a role in ruling on the legitimacy of the program. A competing proposal by Senator Mike DeWine, Republican of Ohio, would allow the president to authorize wiretaps for 45 days without Congressional oversight or judicial approval.

Judge Robertson made clear that he believed the FISA court should review the surveillance program. "Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way," he wrote. . . .

Quote:

Judges Back Court Review of Eavesdropping

WASHINGTON - Five federal judges gave a boost Tuesday to legislation that would bring court scrutiny to the Bush administration's domestic spying program.

At a Senate Judiciary Committee hearing chaired by Sen. Arlen Specter (news, bio, voting record), R-Pa., the judges reacted favorably to his proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

The existence of the warrantless surveillance by the National Security Agency was revealed by The New York Times three months ago.

The judges stressed that they were not offering their views on the NSA operation, which they said they knew nothing about.

But they said the Foreign Intelligence Surveillance Court has operated capably for 28 years and is fully able to protect civil liberties and give the administration all the speed and flexibility it needs to execute the war on terror.

The administration contends the president has inherent war powers under the Constitution to order eavesdropping without warrants.

"I am very wary of inherent authority" claimed by presidents, testified U.S. Magistrate Judge Allan Kornblum. "It sounds very much like King George."

So far, I cannot find anything to substantiate the Washington Post's headline that "FISA judges say Bush within law."

From the testimony as linked by Tico:

Quote:

... Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

. . . Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. . . .

. . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. . . .

. . . If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. . . .

The warrant clause of the Fourth Amendment is not dead language. Rather, it has been "a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement."

. . . These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. . . .

. . . Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. . . .

. . . Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

. . . Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). . . .

. . . FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights.

. . . In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully theGovernment's case and to be heard by an impartial adjudicator.

D

In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding--one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker.

Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the "secure interrogation environment," and noting that military interrogations require a controlled "interrogation dynamic" and "a relationship of trust and dependency" and are "a critical source" of "timely and effective intelligence") with Concrete Pipe, 508 U. S., at 617-618 ("one is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true" (internal quotation marks omitted). That even purportedly fair adjudicators "are disqualified by their interest in the controversy to be decided is, of course, the general rule." Tumey v. Ohio, 273 U. S. 510, 522 (1927). Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause.

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.