Legality of Bush-Approved NSA Wiretaps Questioned

President Bush on Monday defended his authorization to allow the National Security Agency (NSA) to use of secret wiretaps within the United States, saying the domestic surveillance focused on suspects with links to terror groups. Madeleine Brand discusses the legality of NSA wiretaps with Elizabeth Rindskopf Parker, dean of the University of the Pacific's McGeorge School of Law.

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MADELEINE BRAND, host:

As we just heard, the president defended the NSA's secret eavesdropping program and for analysis of his legal rationale, we're joined by Elizabeth Rindskopf Parker. She served as general counsel of the NSA from 1984 to 1989 and has also been general counsel of the Central Intelligence Agency.

And welcome to the program.

Ms. ELIZABETH RINDSKOPF PARKER (Dean, McGeorge School of Law, University of the Pacific): Thanks very much, Madeleine.

BRAND: Now President Bush has cited two legal bases for waging the war on terror. The first is his constitutional authority as commander in chief of the armed forces. Do you think that that authority is broad enough to include a secret domestic surveillance program?

Ms. PARKER: Well, certainly his commander in chief authority is the basis on which he defends us when military action is involved, and, of course, part of that defense will naturally involve collection of intelligence. And so that's the predicate on which such actions would be taken in a time of war.

BRAND: And the president has also pointed to a joint resolution passed by Congress in the days after the 9/11 attacks that allows him to, quote, "use all necessary and appropriate force to fight terrorism" and that has been reiterated by Attorney General Alberto Gonzales today, in fact. Does that seem like a solid legal ground for this program?

Ms. PARKER: Well, I think what we have here is the theoretical proposition that we are in a war--it's quite an unusual war, as I think everyone would observe--but that we have congressional agreement that going back to the 9/11 attacks, it was appropriate to take this type of military action invoking then the president's powers under Article 2. I think the question, however, that many would ask is: Just how long does this state of war continue, and are we continuing in the same state of emergency today as we were at the time of the 9/11 attacks?

BRAND: And in fact, the courts and the 1978 Foreign Intelligence Surveillance Act give the president broad powers in obtaining these warrants for domestic surveillance. So why would he have to not go to the courts, go circumvent the courts, to do this kind of operation?

Ms. PARKER: The argument is made by the administration that the court procedures were simply not adequate to support the action that needed to be taken with sufficient speed, and that's something that the oversight committees are in a position to review and consider. Presumably they understood this when they were first briefed but, for reasons known only to them, seem not to be clear about it presently.

BRAND: And where might this come in conflict, do you think, with the Fourth Amendment, which prohibits unreasonable searches and seizures?

Ms. PARKER: Well, the Fourth Amendment, as most of your listeners will understand--it really relates to domestic law enforcement activities. There is certainly a Fourth Amendment aspect to any information that might be collected in an intrusive way even though for national security purposes. And one of the problems that the current war on terrorism creates is the blending between law enforcement on the one side and more traditional foreign intelligence collection in support of military action on the other.

BRAND: The last time we heard a president being criticized for warrantless wiretaps was with Richard Nixon, and I'm wondering if you thought about the difference legally between Nixon's wiretaps and these ones that President Bush has authorized.

Ms. PARKER: At the time Nixon did his wiretaps, the reasons behind them seemed more to be about First Amendment rights of certain individuals who were criticizing his conduct of the war in Vietnam. Here we've heard nothing to suggest that anything other than a concern about protecting against further hostile actions in a network that, as we know, operates in the shadows and is very nimble and difficult to identify is the reason for the surveillance.

That said, I think this president has a particular problem with regard to some of the actions that he's taken in prosecuting this war on terrorism that have been the subject of tremendous criticism. So I think that's another reason why Congress has a very serious responsibility here to review what was done and make sure that they're comfortable with the actions taken. The irony, of course, is that the two oversight committees presumably were doing this all along, and yet they've been notably silent in the discussion in the last several days.

BRAND: Elizabeth Rindskopf Parker is currently the dean of the McGeorge School of Law at University of the Pacific. She previously served as general counsel of the National Security Agency and general counsel of the CIA.

Thank you very much.

Ms. PARKER: Thank you, Madeleine.

BRAND: Stay with us on DAY TO DAY from NPR News.

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