Surveillance and the Law

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Attorney General Alberto Gonzales is defending President Bush's decision to authorize the National Security Agency to eavesdrop on people within the United States without obtaining warrants. The Foreign Intelligence Surveillance Act of 1978 makes it illegal to spy on U.S. citizens without court approval. Renee Montagne talks to Retired Adm. Bobby Ray Inman, director of the NSA when the law was written.


Attorney General Alberto Gonzales is defending President Bush's decision to authorize domestic spying after the September 11th attacks. Over the weekend, President Bush acknowledged that he authorized the National Security Agency to eavesdrop on international phone calls and e-mails of people with alleged ties to terrorists, even those within the United States, without warrants. A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on citizens in the United States without court approval. Retired Admiral Bobby Ray Inman was the director of the National Security Agency in 1978 when that law restricting surveillance was written.

Good morning.

Vice Admiral BOBBY INMAN (Retired; Former Director, National Security Agency): Good morning.

MONTAGNE: Admiral Inman, we wanted to talk with you because you were there, as we said, when the law was written. What was the balance that the law, the Foreign Intelligence Surveillance Act, was trying to strike?

Vice Adm. INMAN: When--for 30 years, presidents had authorized foreign intercepts within the US. The criticism during the Church and Pike Committee times was so intense that the public got the view that we were just broadly spying on American citizens. So the intent was to establish a legal review process that would, in fact, do the authorizations that the president had done for the previous 30 years to restore confidence that all of these activities were purely focused on foreign intelligence and not on US citizens.

MONTAGNE: And when the law was written, what sort of threat were you concerned with? Not terrorism at that time?

Vice Adm. INMAN: That's a very good point, Renee. Our concern was Cold War in the process. We were not concerned about attacks being conducted by terrorists within the US. Had I been in the job immediately after 9/11, because the FISA Act did not authorize looking for US citizens, I would've appealed for some approval to let us collect. The part about which I'm somewhat confused is why it needed to continue after the Patriot Act was put in place, which I thought was, in fact, meant to close that gap for terrorist activity within the US.

MONTAGNE: Well, then, getting to that, why--you say you're confused as to why the administration needed to go around the court. For instance, how long does it take to get a warrant in a situation like this under the Patriot Act?

Vice Adm. INMAN: If you have a very legitimate challenge, something new has popped up, you can within a couple of days get a warrant. The court's always been very good about scheduling hearings when there is a genuine challenge in front of you. But this is not a rubber stamp. The judges who rotate to that function very carefully look at what's there. But I would say there were those who opposed the act back in '78 because they believed we were giving away inherent authority of the president.

MONTAGNE: Well, just briefly, presidents, as you said, had done this for 30 years before the 1978 law. In your opinion, does the president have the legal authority to order this surveillance given this law?

Vice Adm. INMAN: Well, 30 Republican and Democratic presidents over a very long period of time had, in fact, authorized the activity which they believed was in the national need. But again, as you've pointed out earlier, with a different kind of war. We were dealing with worrying about the Cold War in its broadest sense. I'm no constitutional expert, so someone else would have to give you the good answer on whether there is a legitimate constitutional basis for the action.

MONTAGNE: Thank you very much.

Vice Admiral Bobby Ray Inman was the director of the National Security Agency from 1977 to '81.

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