Legality of Bush Eavesdropping Order Questioned

President Bush has claimed that a legal measure passed in the wake of the Sept. 11 attacks gives him the authority to authorize domestic spying. His critics say that another measure, passed in 1978, severely limits such spying.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

The president, the attorney general and members of Congress continue debating whether the government can legally spy on Americans at home. There are two measures that repeatedly come up in these discussions. The first was passed in 1978. It's called the Foreign Intelligence Surveillance Act and it puts strict limits on domestic spying. Congress passed the other in 2001, giving President Bush the authority to use force against terrorists. NPR's Ari Shapiro reports on exactly what these documents say and whether they mean what the White House claims.

ARI SHAPIRO reporting:

One measure limits presidential power; the other expands it. The Foreign Intelligence Surveillance Act, or FISA, set up a secret court to keep domestic wiretaps in check. That law is hundreds of pages long, full of legal nooks and crannies. The 2001 authorization of force is much broader and it's much shorter than FISA. It says in part, `The president is authorized 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 on September 11th, 2001. So the question is: Does 2001 trump '78? President Bush believes it does.

President GEORGE W. BUSH: Do I have the legal authority to do this? And the answer is absolutely.

SHAPIRO: In a press conference yesterday, he said Congress' 2001 use-of-force authorization gave him the power to circumvent the FISA court. That interpretation is controversial. John Pike directs the defense information Web site GlobalSecurity.org.

Mr. JOHN PIKE (GlobalSecurity.org): I don't think that the Congress thought that authorizing the president to blow up the Taliban was authorizing him to rule like a dictator, which is what he's claiming it did.

SHAPIRO: Pike says if you follow the White House's legal reasoning, there's no limit to presidential power as long as the war on terror is under way.

Mr. PIKE: It basically asserts that with that one authorization, they unwittingly exempted the president from the rule of law, that they basically said you can do whatever you want to. It doesn't matter what laws we've passed, doesn't matter what the Supreme Court has ruled over the last couple of centuries--you can do what you want to.

SHAPIRO: When a reporter asked Mr. Bush whether there are any checks on his wartime powers, he said there are.

Pres. BUSH: There is the check of people being sworn to uphold the law for starters. There is oversight. We're talking to Congress all the time.

SHAPIRO: Parts of the Foreign Intelligence Surveillance Act do allow surveillance without a court order. But they're all pretty narrowly tailored. For example, one part of the law says in wartime the president can tap someone's phone for 15 days before obtaining a judge's permission. Elizabeth Rindskopf Parker used to be general counsel for the CIA. She's now dean at University of the Pacific McGeorge Law School.

Ms. ELIZABETH RINDSKOPF PARKER (Dean, University of the Pacific McGeorge Law School): It is obvious that from what we've learned in the president's comments and press accounts that the program was repeatedly reviewed and approved--whether in order to tack on successive 15-day periods or not, we don't know.

SHAPIRO: These exemptions from court oversight often hinge on the country being at war. Rindskopf Parker says that presents a dilemma in this situation.

Ms. RINDSKOPF PARKER: One of the difficulties I think of talking about this as a war on terror is the suggestion is that we'll be on a wartime footing for many years, if indeed the terrorist threat continues, as some suggest it will, for a long period of time.

SHAPIRO: There's a near consensus that in an emergency, the president can exercise more power than he can in peace time. Fred Hitz was inspector general for the CIA and now teaches law at the University of Virginia and Princeton.

Mr. FRED HITZ (University of Virginia, Princeton): Yes, that may be true in the actual emergency in the period in which we really aren't sure of what we're facing. But then there comes a time after there has not been another attack, thank goodness, of such magnitude where we would want to go back to the regular order.

SHAPIRO: The president's rationale of expanded wartime powers is not limited to domestic surveillance. This administration has used the war on terror to justify military tribunals and designation of enemy combatants. Some parts of those policies have been upheld by the courts; others have not. The judiciary has yet to weigh in on this program. Ari Shapiro, NPR News, Washington.

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