Bush: I have legal authority to eavesdrop on U.S. citizens

Bush said a resolution passed by Congress authorized his use of force.
Knight Ridder Newspapers
WASHINGTON -- President Bush has staked his case for government eavesdropping on U.S. citizens on a vote by Congress authorizing the use of force against perpetrators of the Sept. 11, 2001, attacks.
The resolution, one sentence in length, was passed a week after the attacks.
It calls on the president to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred Sept. 11, 2001."
Both Bush and Attorney General Alberto Gonzales said the resolution provided the legal basis for authorizing the National Security Agency to secretly monitor the telephone calls and e-mails exchanges of Americans with others abroad as part of the war on terror.
"Do I have the legal authority to do this? ... The answer is absolutely," Bush said at news conference Monday. "The legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress."
Opposition
But there is little agreement in legal or political circles on what the Constitution has to say about the question, and where exactly to locate the boundaries of presidential authority.
"My personal view is that the administration's argument does not pass the straight face test," said Michael Seidman, a Georgetown University law professor. "Ask yourself whether the typical member of Congress voting for the resolution thought they were ... authorizing wiretapping. The people in the House and Senate thought they were authorizing the use of force against people who were responsible for the Sept. 11, 2001 attacks."
The president's critics say that Congress anticipated the need to act quickly against terror groups while preserving civil liberties with the enactment in 1978 of the Foreign Intelligence Surveillance Act, which required the government to obtain a warrant before it could eavesdrop on American citizens.
In the event that Congress declares war, the act gives the president 15 days in which to conduct surveillance without a court order. After that, government investigators must obtain a warrant from a secret court set up to hear such cases.
David Cole, another Georgetown law professor and a longtime critic of the Bush administration, said a legally similar issue emerged under President Truman who sought to seize control of steel mills as part of the Korean War effort, even though Congress had previously forbid it. The courts overruled him.
In defense
Yet there are situations in which government officials are authorized to conduct warrantless searches. Customs officials often inspect baggage as travelers enter the country; transportation security agency employees routinely inspect luggage to protect commercial airliners from terrorist attacks.
Police often search cars or conduct other surveillance in fast breaking criminal probes without first receiving court permission. Afterward, they typically must go before a court to explain the legal basis for the searches and to seek permission to use whatever evidence they've gained, Cole said.
Quite apart from that resolution authorizing military force against Al-Qaida, the president's defenders say Article II of the Constitution gives the chief executive broad authority to take actions to protect the nation.
John Yoo, a former senior official of the Justice Department under President Bush, wrote in an op-ed piece in the Los Angeles Times that one measure of presidential authority is the fact that presidents have initiated military actions abroad 100 times since the nation's founding, and they did so in most cases without a congressional declaration of war.
The Constitution, he wrote, "creates a presidency that is uniquely structured to act forcefully and independently to repel serious threats to the nation."
Presumptions
Gary Schmitt, a resident scholar at the American Enterprise Institute, an influential conservative think tank, said the chaos that resulted from a weak executive branch under the Articles of Confederation, which preceded adoption of the Constitution, convinced the founders that a strong executive was needed to lead the country.
"At a time of war, the president has ... unique capabilities that the Constitution presumed," he said.
Some in Congress either reject that idea outright or remain unconvinced.
On Tuesday, two Republicans and three Democrats on the Senate Intelligence Committee called for hearings into the NSA surveillance program. Sen. Arlen Specter, R-Pa., also has voiced skepticism about the program's legality.
Such hearings -- and political debate -- may be a better way to resolve the issue than going to the courts, Georgetown's Seidman said.
Because the NSA program was secret, those who might have been harmed by the surveillance don't know it, and thus are not in a position to sue the government, he said.