Domestic Spying and a Delayed Report

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The New York Times says President Bush signed a 2002 order authorizing the National Security Agency to monitor some communications originating in the United States without court-issued warrants. Washington Post reporter Dan Eggen and Alex Chadwick discuss the Times' decision to delay publishing the story for a year at the White House's request.

ALEX CHADWICK, host:

From NPR West, this is DAY TO DAY. I'm Alex Chadwick.

Coming up, the voice of an American soldier on what it means to fight in Iraq.

First, the lead. A new revelation and constitutional questions about fighting the war on terror here in this country. A lengthy peace on the front page of today's New York Times reports that the Bush administration has used a top-secret government agency to eavesdrop on American citizens who could have some connection to al-Qaeda. The Washington Post follows up and goes further. It reports that the Defense Intelligence Agency has agents at work within US borders, keeping watch on various individuals. Dan Eggen wrote the story in The Washington Post. He joins us from Washington.

Dan, the eavesdropping first. Who is doing it and who are they listening to?

Mr. DAN EGGEN (The Washington Post): It's the National Security Agency, which is generally an overseas agency, and it's so secretive that it's often jokingly referred to as No Such Agency. They are generally prohibited or have been in the past from doing much in the way of surveillance in the United States. There are some small exceptions related to foreign embassies and the like. But this order from the president in 2002, which until now had not been revealed, allowed them to expand those activities quite a bit. It would involve international phone calls and the persons involved could be US citizens.

CHADWICK: So they could listen in to phone calls from US citizens under very specific circumstances. These had to be international calls, right?

Mr. EGGEN: Correct. Supposedly the domestic calls within the United States, you know, from one state to another would still require a warrant from a secret court that meets in Washington and that oversees lawful domestic spying.

CHADWICK: The Times story quotes some source as saying that this has been, as The Times story phrases it, "a critical tool in helping disrupt terrorist plots and prevent attacks inside the US." That is, apparently this is an administration source telling The Times this. Did anyone say that to you?

Mr. EGGEN: In general terms, probably not quite that strongly, but yes, in general, they argue that this has been an important tool, but there's also acknowledgment that there was a great deal of heartburn among many within the government about whether this was proper, whether it was legal, and so there's been a lot of behind-the-scenes debate among a fairly limited number of officials as to whether this should have been allowed.

CHADWICK: If we go back 30 years, the National Security Agency was cited then for essentially spying on American citizens who were against the war in Vietnam. And that time, there were laws passed specifically against this, isn't that right?

Mr. EGGEN: Correct. It arose out of all of the intelligence-related scandals of the '70s, the Church commission and other investigations that had uncovered a rather vast array of domestic surveillance conducted by a number of agencies including the NSA. And so among other things a law in the late '70s called the Foreign Intelligence Surveillance Act was passed to govern, you know, what can be done within the United States.

CHADWICK: You quote one civil libertarian as saying, "The president with this order in 2002 may have authorized criminal activity."

Mr. EGGEN: There's two sides to the argument. The underlying rationale for the president's order, we're being told, is it was a legal opinion from the Justice Department that was similar in its argument to the now disavowed torture memo which had set out very limited definition of torture and was disavowed by the administration after it was revealed. Underlying those memos is the contention that the president has virtually unfettered power to conduct the war on terror once Congress gave him the green light. And so in a similar way, there's another memo that exists that makes that argument in terms of domestic surveillance.

The argument from the civil liberties side and probably from a lot of legal experts as well will be that there's a specific federal statute that prohibits this kind of warrantless domestic surveillance and, the argument goes, the president cannot simply decide to overturn a law like this.

CHADWICK: We'll look for more developments on this story today and through the weekend.

Dan Eggen of The Washington Post, thank you for speaking with us on DAY TO DAY.

Mr. EGGEN: Glad to be here. Thanks for having me.

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