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Eavesdropping tests legal lines

Executive powers have been used before, but the broad scope of Bush's monitoring plan is unusual, experts say

BY JOHN RILEY | STAFF WRITER

December 26, 2005

As a Carter administration lawyer in the late 1970s, Kenneth Bass found himself in the middle of negotiations between Congress and the White House over passage of the Foreign Intelligence Surveillance Act, the law governing national security wiretaps that has been at the center of the past week's firestorm over President George W. Bush's program of warrantless eavesdropping on Americans.

Even as he signed the bill, Democratic President Jimmy Carter - like Bush, a quarter-century later - insisted that he retained "inherent powers" as president to act outside the law's requirement of court approval, if such action was necessary to protect national security. And against that history, Bass wasn't particularly shocked that Bush would sidestep the law.

But he found the scope of the sidestep astounding - not a single emergency case, but an extended anti-terror program to monitor hundreds of communications, an entire class of Americans who probably could not have been surveilled under the law Congress passed.

"We had advised Congress that the president retains constitutional authority to act contrary to FISA in exceptional circumstances on a case-by-case basis," Bass said. "That was the historic posture. I was very surprised that the White House would invoke that doctrine not for case-by-case surveillance in exceptional cases, but for a programmatic exception overriding FISA for three years."

After a busy week before Christmas in which Bush, his supporters and his critics hurled the words "legal" and "illegal" at each other as if they were epithets, such comments hint at some of the complexities underlying the debate. Bush, the legal history suggests, is not inventing the claim that he had authority to institute the program out of thin air. At the same time, however, the Supreme Court has never ruled that the asserted presidential power even exists, and if it does there is considerable doubt about whether it justifies a program as audacious as the one Bush authorized.

Under Bush's program, secret until it was revealed by the New York Times, the National Security Agency electronically monitored overseas calls and e-mails by hundreds, perhaps thousands, of Americans, based on suspicion that one party to the communication had a suspected link to al-Qaida. Acting under a series of executive orders, the monitoring was approved by NSA shift supervisors rather than by a judge on the secret federal court the FISA law set up to review such spying. The administration won't provide details or say how many people were spied on, but says the program helped prevent attacks.

Attorney General Alberto Gonzales compared the monitoring to wartime "signals intelligence" dating back to the Civil War. "Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement," the Justice Department asserted in a letter to the heads of Congress' intelligence committees last week.

Such certainty, however, bears little resemblance to the actual legal backdrop. The Supreme Court, in the 1970s, rejected a similar claim of presidential power to conduct eavesdropping in domestic security cases involving perceived internal threats, saying that judicial involvement and congressional standards were needed to comply with the Fourth Amendment. It expressly declined to rule on related matters of foreign intelligence, but the case and the questions it raised set the stage for the law Carter signed in 1978.

Some lower courts had recognized an inherent presidential power to eavesdrop for foreign intelligence, but those cases occurred before the passage of FISA. That law altered the constitutional landscape, because of a theory first propounded by Justice Robert Jackson in a 1950s case in which the Supreme Court rebuffed President Harry Truman's effort to break a labor impasse by controlling steel production during the Korean War.

The theory, adopted as law by later Supreme Courts, was that presidential power - even in wartime - is "at its nadir," in the words of the late Chief Justice William Rehnquist, Jackson's clerk at the time, when a president "takes measures to deal with a situation in a particular way, whereas Congress has said it should be dealt with in a different way." That proposition has "stood the test of time," Rehnquist said in a 2003 speech.

To Bush critics, it undercuts his claim that he was free to wiretap. "The Supreme Court's basic take is that when Congress has said something specific, the president's authority to take action beyond that is at its lowest ebb," says Deborah Pearlstein, director of law and security programs for the advocacy group Human Rights First. "This would seem to be right up against that wall. Congress has acted. The president seems to be circumventing it. And that raises an enormous constitutional question."

However, in the current debate Gonzales has recognized the problem by supplementing the claim of inherent authority with the assertion that Congress, in its post-Sept. 11 resolution that laid the legal groundwork for war in Afghanistan by authorizing the use of all "necessary and appropriate force" against al-Qaida, authorized Bush to wiretap Americans.

His logic: Some Supreme Court justices, in a case last year involving the battlefield capture of U.S. citizen Yaser Esam Hamdi in Afghanistan, said his detention was justified because the "necessary force" resolution gave the president the power to engage in all "fundamental incidents" of war.

Since spying on overseas e-mail and phone calls is "signals intelligence," and signals intelligence is a fundamental incident of war, the wiretap program was authorized by Congress, and presidential power is at its "maximum" - not its nadir - under the steel seizure case, the Justice Department argues.

But that argument does not impress critics. "I think its got its problems," said Scott Silliman, a Duke law school expert on national security.

Among them: It's hard to believe the broad, general Sept. 11 resolution was intended to amend a specific, detailed wiretap law without even mentioning it. "Force" does not ordinarily mean secret spying. The Bush administration obtained several changes to the FISA law to help with the war on terror in the Patriot Act in late 2001 that would have been unneeded if - as they now claim - Congress had already authorized him to do secret wiretapping outside FISA.

And last week, Gonzales said the administration did not seek changes in FISA to allow the Bush program because it felt Congress would not approve, a proposition hard to square with the claim that Congress had already approved.

Beyond the question of Bush's authority to institute the plan lies a second major legal debate. The Fourth Amendment to the constitution prohibits "unreasonable" searches - which include eavesdropping - and the administration has not claimed that it can operate outside the Constitution.

Instead, it has argued that a different balance than the one laid out in the FISA law and accepted by the courts - allowing intelligence wiretaps based merely on evidence that a person is a foreign or terrorist agent, but requiring a court warrant - defines what is "reasonable" in the war on terror. The administration says that to prevent attacks a system with more "speed and agility" than the FISA process is necessary, but while dispensing with judges it says the Bush program has been narrowly focused and carefully monitored.

"There's always a balancing between security and liberty," said Gen. Michael Hayden, the deputy director for national intelligence and head of the National Security Agency when it began the secret eavesdropping in 2002. "We understand that this is a more, I'll use the word aggressive, program than would be traditionally available under FISA. It is also less intrusive."

Critics, however, point out that the FISA law allows 72-hour emergency wiretaps without court orders, and even longer periods are permitted in wartime. They say the program is not about speed, agility and procedure, but about substance - an intelligence net tapping people who couldn't be tapped under FISA, a completely new category of Americans targeted simply because they were in contact with people overseas whom the government suspected.

"I doubt that it's necessary or effective," Bass said. "It boggles my mind to think that a three-year program that seems to have targeted thousands of Americans produced enough information not otherwise obtainable to justify that degree of intrusion."