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Spying defense meets skepticism

President Bush asserts his right to approve domestic surveillance, but legal experts, Democrats and some Republicans aren't convinced.

By wire services
Published December 20, 2005

WASHINGTON - The political uproar over President Bush's secret domestic spying program escalated Monday as the president said he did not overstep his constitutional bounds and congressional critics from both parties stepped up their attack and vowed a full investigation.

Bush mounted a vigorous defense of his order authorizing warrantless eavesdropping on overseas telephone calls and e-mail of U.S. citizens with suspected ties to terrorists. He said his "obligation to protect you" against attack justified a circumvention of the traditional process in a fast-moving, high-tech battle with a shadowy enemy.

"This is a different era, a different war," the president said at a year-end news conference in the East Room. "People are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent. I keep saying that, but this ... requires quick action."

Bush cited a congressional resolution passed a week after the Sept. 11, 2001, attacks that authorized the president to use force against those responsible for them. So did Attorney General Alberto R. Gonzales, who said in a separate session with reporters that the congressional measure, in addition to the president's inherent power as commander in chief, gave the government the power "to engage in this kind of signals intelligence."

"The fact that we're discussing this program is helping the enemy. ... We're at war, and we must protect America's secrets," Bush said. He offered assurance to the public that "I am doing what you expect me to do, which is to safeguard civil liberties and at the same time protect the United States of America."

Legal experts, Democrats and some key Republicans on Capitol Hill were unpersuaded and questioned whether Bush has violated a law intended to prevent the government from spying on its citizens without court approval.

"The president's dead wrong. It's not a close question. Federal law is clear," said Jonathan Turley, a law professor at George Washington University and a specialist in surveillance law. "When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors."

Voicing "grave doubts" over the legality of the National Security Agency program, Senate Judiciary Chairman Arlen Specter, R-Pa., said he will conduct hearings next month on the issue.

"Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror - including myself who voted for it - thought that this was an authorization to allow a wiretapping against the law of the United States," said Sen. Russell Feingold, D-Wis., in an interview Monday on the NBC program Today.

Two Democratic lawmakers who had been briefed on the NSA program well before it became public last week accused Bush and his advisers of withholding key details. Sen. John Rockefeller, D-W.Va., and former Sen. Tom Daschle, D-S.D., said they had objected to Bush's plan, but had no way to stop it without exposing classified information.

Rockefeller, the top Democrat on the Senate Intelligence Committee, released a handwritten letter he secretly sent Vice President Dick Cheney in July 2003 objecting to the program.

"Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities. ... I simply cannot satisfy lingering concerns raised by the briefing we received," Rockefeller wrote in a note dated July 17, 2003.

Bush authorized the eavesdropping program after the terrorist attacks on Sept. 11, 2001, to bypass a federal law that requires court approval for domestic surveillance. The 1978 Federal Intelligence Surveillance Act created a special secret court to approve domestic surveillance in cases that can't be treated as normal criminal investigations. Since the law was passed, the court has rejected just five of 18,743 requests for wiretaps and search warrants, according to the government.

The law, enacted in response to illegal wiretaps during the Nixon administration, includes emergency provisions that let investigators seek court approval up to 72 hours after the surveillance starts.

"He does have to move quickly, at times. And that's why the FISA law says, "Move first and then notify the court and seek their authority afterward,"' said Sen. Carl Levin, D-Mich., the top Democrat on the Senate Armed Services Committee.

At a briefing for reporters before Bush's news conference, Attorney General Gonzales and Gen. Michael Hayden, deputy director for national intelligence, said the emergency provisions are inefficient.

Hayden said that any domestic surveillance of suspect terrorist associates has to be approved by a shift supervisor at the NSA.

"What we are talking about here are communications we have every reason to believe are al-Qaida communications, one end of which is in the United States. I don't think any of us would want any inefficiencies in our coverage of those kinds of communications," Hayden said. "The whole key here is agility."

Gonzales, who served as White House legal counsel before moving to head the Justice Department, cited two sources for Bush's legal authority - Article II of the Constitution and the 2001 congressional resolution.

Yale law professor Akhil Reed Amar, an authority on the Constitution and the Bill of Rights, questioned this. "Does the resolution or Article II repeal every civil liberties law ever adopted? The resolution is focused really on enemies abroad. The question is whether that's carte blanche for surveillance at home."

--Information from the Dallas Morning News, Knight Ridder Newspapers, New York Times and Washington Post was used in this report.

[Last modified December 20, 2005, 01:51:07]

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