Examining the USA Patriot Act, Domestic Spying
FARAI CHIDEYA, host:
David Cole is a professor at Georgetown University Law Center and legal affairs correspondent for The Nation magazine. He's with us from Washington, DC.
David, good to have you on.
Professor DAVID COLE (Georgetown University Law Center): ...for having me.
CHIDEYA: So let's talk about the NSA. President Bush has acknowledged that he authorized the US agency to eavesdrop on people in America. He said he did this to protect the public against terrorism. Does this stand up?
Prof. COLE: I think it clearly does not stand up. There is a law on the books that gives the president the authority to conduct wiretaps in the name of fighting terrorism. It's called the Foreign Intelligence Surveillance Act. It expressly addresses wiretaps during wartime and gives the president the authority to do warrantless wiretaps, but only for the first 15 days of the declared war. It then makes it a crime for the president or anyone else to conduct a wiretap without other statutory authority. And here the president simply ignored what Congress had said and went ahead and conducted wiretaps without any congressional authority and without any judicial determination of probable cause.
CHIDEYA: What kind of sanctions are there for something like this, which seems to be extra legal? When you're talking about the government breaking its own provisions, what recourse do citizens have?
Prof. COLE: Well, that's a good question. I mean, Congress made it a crime, and they said it's subject to five years in prison and a $10,000 fine. But, of course, that would require the attorney general, Alberto Gonzales, to prosecute the president and that's not very likely to happen. I think the recourse is very likely to be political. There ought to be, and I think will be, an intensive investigation of this claim, and ultimately I think he has to be held accountable by Congress and by the people.
CHIDEYA: What about the rejection by the Senate of the extension of the Patriot Act? What do you believe is the impact of the NSA on that and more importantly what will the Senate's position do to the Patriot Act if they continue to hold this stance?
Prof. COLE: Right. Well, I think the NSA spying scandal had a great deal to do with the Senate's rejection. I mean, here we are fighting about the details of the Patriot Act, which actually sets forth and expands the power of the president under the Foreign Intelligence Surveillance Act to get wiretaps, and then we learn on the morning that the vote is going to take place that the president has simply been ignoring all the language that we've been fighting about and going forward without any authority whatsoever. And so this from an administration that has for years been saying, `Trust us. Give us broad powers and trust us. We don't have any interest in abusing them. We won't abuse them. Trust us.' Well, I think what the NSA story shows is you can't trust the government, and so what the Senate is now saying is we need to make sure that we have clear restrictions and checks and balances in the Patriot Act before we extend it.
CHIDEYA: The president has said that he would veto just a three-month extension. Do you think that he'll be forced to accept that compromise?
Prof. COLE: Yeah, he said he would veto John McCain's amendment banning cruel, inhuman and degrading treatment as well, and he was forced to back down on it. You know, I think what makes sense at this point is if they can't work out a compromise in the next day or two, which I think is unlikely, on the substance of the provision, which makes sense is to extend it for a month or three months so that when we come back in January, we can have a sensible discussion about what kinds of checks are needed and that discussion, you know, will have the benefit of knowing more about the kinds of abuses that the administration has undertaken in our name.
CHIDEYA: David Cole is professor at Georgetown University Law Center and legal affairs correspondent for The Nation magazine.
Thank you so much for joining us.
Prof. COLE: Thanks for having me.