White House Elaborates on Authority for Eavesdropping

By Charles Lane
Washington Post Staff Writer
Tuesday, December 20, 2005

Facing mounting criticism over use of the National Security Agency to listen to phone calls of suspected al Qaeda contacts in the United States without court approval, the Bush administration went public yesterday with its most detailed legal defense yet of the program.

President Bush and top administration officials said his authority derives from a congressional resolution and a Supreme Court decision, as well as the president's constitutional powers as commander in chief.

Bush told a news conference that he still wants investigators to seek warrants in many cases from a secret foreign intelligence surveillance court, as required by a 1978 federal law. But he said authorities should be able to act outside that framework when the government needs "to move quickly to detect" plotting of terrorism between people in the United States and abroad.

"Having suggested this idea," the president said, "I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely."

The statements by the president and other top officials triggered immediate debate, as many legal experts questioned his power to act on his own in an area where Congress has already legislated. The 1978 law, adopted by Congress and signed by President Jimmy Carter, claims to establish an "exclusive" set of rules and procedures for foreign intelligence surveillance.

"The issue here is this," said Jamie Gorelick, who served as deputy attorney general under President Bill Clinton and as a member of the Sept. 11 commission. "If you're John McCain and you just got Congress to agree to limits on interrogation techniques, why would you think that limits anything if the executive branch can ignore it by asserting its inherent authority?"

The Supreme Court spoke at the height of the Korean War on the president's authority to override Congress. In 1952, President Harry S. Truman ordered a federal takeover of the steel industry to prevent a strike that would have disrupted the supply of weapons to troops at the front. He cited his authority as commander in chief.

By a vote of 6 to 3, the court rejected Truman's claim. In an influential concurring opinion, Justice Robert H. Jackson wrote that the president's power is "at its lowest ebb" when he "takes measures incompatible with the expressed or implied will of Congress."

"With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations," Jackson wrote.

Analysts said that precedent makes Bush's claim of inherent constitutional authority to eavesdrop the most controversial aspect of his legal argument. But such claims have a long history. Presidents going back to Franklin D. Roosevelt either acted as if they had such power, or openly asserted it.

But the intelligence scandals of the 1960s and '70s changed the political and legal climate. In 1972, the Supreme Court rejected warrantless searches in cases of alleged domestic national security threats, but left open the issue of eavesdropping for foreign intelligence or counterintelligence purposes. The court has still not explicitly addressed the issue.

The Foreign Intelligence Surveillance Act (FISA) was intended to fill that gap. It required that the executive branch get approval from a secret court before conducting wiretaps within the United States. In signing the law, Carter praised it for protecting privacy and said it "clarifies the Executive's authority."

The original version of the law was silent on warrantless physical searches of suspected spies or terrorists. The Clinton administration claimed inherent authority to conduct such "black bag" jobs, including searches of CIA turncoat Aldrich Ames's house that turned up evidence of his spying for Russia. But it later sought amendments to FISA that brought physical searches under the FISA framework.

The Bush administration argues that the steel seizure case poses no problem for its NSA program because Congress adopted a joint resolution on Sept. 14, 2001, authorizing the president to use "all necessary and appropriate force" to battle al Qaeda. That would include listening in on suspected terrorists, the administration argues.

Attorney General Alberto R. Gonzales referred reporters yesterday to a 2004 Supreme Court opinion signed by a four-member plurality of the Supreme Court that said the 2001 resolution implicitly authorized the military detention of American citizens as suspected terrorists.

"We believe the court would apply the same reasoning" to electronic eavesdropping, Gonzales said. He added that the Sept. 14, 2001, resolution also corresponds to a provision of FISA that prohibits wiretapping "except as authorized by statute."

Outside experts were skeptical of these arguments. The 2004 ruling required federal court access for citizen detainees, they noted. Also, they said that the USA Patriot Act itself consisted largely of amendments to FISA designed to make it easier for the president to conduct surveillance. That would hardly have been necessary, the experts noted, if Congress had meant to supersede FISA through the 2001 resolution.

"One wonders if Congress really contemplated all these things when it enacted the resolution," said Michael J. Glennon, a professor of international law at the Fletcher School of Tufts University.

FISA also contains emergency provisions that permit warrantless eavesdropping for up to 72 hours when the attorney general certifies that there is no other way to get crucial information. The law also permits warrantless eavesdropping for up to 15 days after a declaration of war.

"There is an emergency provision within FISA, and one could ask for more authority," Gorelick said. "If they had good reason, Congress would have given it to them."

Gonzales said that the administration contemplated doing that, but was told by "certain members of Congress" that "that would be difficult if not impossible."

In effect, the administration is asking the public to accept a program that was conceived in the immediate aftermath of the Sept. 11, 2001, attacks, when tolerance for exceptional measures may have been greater than it is now.

"In times of crisis I think you have to explore, use every capability and explore every option," said Roger Cressey, who was principal deputy to the White House counterterrorism chief during Bush's first term. "But past those, in the day-to-day operations when there is no imminent threat, you need to revisit procedures and structures in place to ensure proper oversight."

Staff writer Dafna Linzer contributed to this report.

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