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White House Elaborates on Authority for Eavesdropping
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.