Presidential power a key issue in debate over eavesdropping
Posted on Mon, Jan. 23, 2006
Presidential power a key issue in debate over eavesdropping
By Ron Hutcheson
Knight Ridder Newspapers
WASHINGTON
The dispute over President Bush's domestic spying program hinges on the same tough question that vexed the nation's founders: How much power does a president have?
Bush and his legal advisers argue that the Constitution and federal law give him the right to authorize domestic eavesdropping without a warrant from a court or specific approval from Congress. The electronic surveillance, conducted by the super-secret National Security Agency, is aimed at communications between the United States and suspected terrorists overseas.
Bush's critics, citing the same legal sources, charge that he exceeded his legal and constitutional authority and could be impeached for breaking the law.
Here's a look at the legal underpinnings of the controversy:
THE CONSTITUTION
The foundation for Bush's view of his authority is Article II of the Constitution, which says "the president shall be commander in chief of the Army and Navy of the United States."
No one disputes that the president has broad power to protect the nation in wartime or that he's the civilian boss of the military, but there's sharp disagreement over the extent of presidential authority. Bush says the constitutional clause empowers him to use any and all available tools - including electronic surveillance - to guard against terrorist attacks.
"My most important job is to protect the security of the American people," the president said Monday at Kansas State University. "What I'm telling you is we're using all assets at our disposal to protect you in a different kind of war."
The Constitution is a carefully constructed system of checks and balances, many of which are intended to limit presidential power.
For example, it gives Congress - not the president - the power to declare war, "to raise and support armies," to maintain a navy and to "make rules for the government and regulation of the land and naval forces."
The Fourth Amendment guarantees people the right to be secure from "unreasonable searches and seizures." No court shall issue a search warrant, it says, except upon a showing that there's "probable cause" to think that a law is being broken and the warrant seeker describes the specific place to be searched and the person or things to be seized.
Critics say Bush's assertion of power recognizes no limits to his authority so long as he's acting to protect America from harm.
Previous Supreme Court rulings also check presidential authority.
In 1952, the court blocked President Harry S Truman's plan to take over the steel industry during the Korean War. The court rejected Truman's assertion that his role as commander in chief gave him the power to avert a labor strike that might disrupt war supplies.
In 2004, the court directly challenged Bush's sweeping claim of wartime powers in the fight against terrorism. The justices agreed that Bush could detain U.S. citizens as enemy combatants, but said he couldn't deny the captives access to the courts.
"We have long since made it 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," Justice Sandra Day O'Connor wrote.
FEDERAL LAW
Bush and his advisers contend that Congress "confirmed and supplemented" the president's constitutional power by authorizing the use of force against terrorists three days after the Sept. 11, 2001, attacks. Lawmakers authorized the president to "use all necessary and appropriate force against those nations, organizations or persons" involved in the attacks.
In a recent 42-page statement on the eavesdropping issue, the Bush Justice Department contended that the congressional resolution, coupled with the president's authority as commander in chief, "places the president at the zenith of his powers" to wage war.
"Electronic surveillance is a fundamental tool of war that must be included in any natural reading of the (resolution's) authorization to use `all necessary and appropriate force,'" the Justice Department contended.
Bush's critics say employing the use-of-force resolution to justify domestic surveillance is a stretch.
"It does not authorize the president to do anything other than use force. It doesn't say he can wiretap people in the United States," said Sen. Dianne Feinstein, D-Calif.
The critics charge that Bush's approach violates the Federal Intelligence Surveillance Act of 1978.
Congress passed that act in response to abuses of power during the Nixon administration that included electronic surveillance of the president's political opponents and critics in the news media.
The law also was intended to plug a gap in the legal framework that governs federal eavesdropping. The government has wide latitude to spy overseas for national security, but domestic eavesdropping is far more sensitive.
FISA asserts that electronic surveillance within the United States requires court oversight to avoid running afoul of the prohibition against unreasonable searches in the Fourth Amendment.
FISA established a special court to deal with secret intelligence investigations, and requires warrants for electronic surveillance in cases that involve national security. If government agents need to move quickly, they're permitted to act first and then have up to three days to get court warrants.
FISA makes it a crime to engage in electronic surveillance outside the statute's framework, unless another law authorizes it.
Bush advisers say technological advances and the unique nature of the war on terrorism made the FISA warrant procedure unworkable. They say they considered asking Congress to update the law, but decided against it to avoid possible disclosure of the government's intelligence-gathering techniques.
They contend that the congressional use-of-force resolution and the president's constitutional power as commander in chief override FISA.
"It would be unreasonable and wholly impractical to demand that Congress specifically amend FISA in order to assist the president in defending the nation," the Justice Department said.
But the nonpartisan Congressional Research Service, the research arm of Congress, concluded in a report Jan. 5 that the administration's legal justification "does not seem to be as well-grounded" as Bush's advisers claim.
The report also questioned the notion that Bush could simply ignore FISA.
"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations ... ," it said.
"While courts have generally accepted that the president has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables Congress from endeavoring to set limits on that power."
Administration officials say they can bypass FISA and use a lower legal standard than the act requires and than the language in the Fourth Amendment calls for in deciding when to eavesdrop. FISA requires federal agents to demonstrate that there's "probable cause" in order to get an eavesdropping warrant, the same language used in the amendment. The National Security Agency, acting without court oversight, says it engages in electronic surveillance if it considers the eavesdropping "reasonable."
"The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al-Qaida or one of its affiliates," Air Force Gen. Michael Hayden, one architect of the eavesdropping, said Monday at the National Press Club.
Bush's critics charge that the administration's position is an unprecedented power grab that calls into question the president's commitment to rule of law.
"Congress established the FISA court precisely to be a check on executive power to wiretap," former Vice President Al Gore charged last week.
"FISA does not contain a provision allowing the president to waive its application," Feinstein said. "If the law needed changing, we could have done so."
Senate hearings on the issue are scheduled for next month. Civil liberties groups have sued seeking to shut down the eavesdropping program. Bush says he won't back down.
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To learn more online:
For the Congressional Research Service report, go to
www.fas.org/sgp/crs/intel/m010506.pdf
For President Bush's remarks Monday and other information on his position, go to
www.whitehouse.gov/infocus/nationalsecurity
For the American Civil Liberties Union's view, go to
www.aclu.org
For a white paper from the Justice Department on the NSA's eavesdropping, go to White Paper
A letter from Attorney General Alberto Gonzales to Senator Bill Frist regarding NSA eavesdropping.
The Fourth Amendment to the Constitution is at
www.law.cornell.edu/constitution/constitution.table.html#articleiv
Article II, Section 2, of the Constitution, on the president's role as commander in chief is at
www.law.cornell.edu/constitution/constitution.articleii.html#section2
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