Bush's Legal Basis for Domestic Spying Program

President Bush and Vice President Cheney continue to defend domestic surveillance conducted by the National Security Agency (NSA) and the authorization of wiretaps that circumvent legal restrictions on spying on Americans. Madeleine Brand speaks with Georgetown University Law Center professor David Cole about the legal basis for the eavesdropping program.

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MADELEINE BRAND, host:

Another controversial legal issue now: the National Security Agency's eavesdropping on international phone calls and e-mails. President Bush and other key officials continue to defend the action. They cite a joint congressional resolution passed just days after the 9/11 attacks as the legal basis for the NSA surveillance. The resolution authorizes the president to use all necessary and appropriate force. Yesterday on the program we spoke with a former NSA official, who said that President Bush may be right in citing that resolution. For another view, we're joined by David Cole. He's a professor at Georgetown University Law Center and an expert on national security and civil liberties.

And, David Cole, welcome to DAY TO DAY.

Professor DAVID COLE (Georgetown University Law Center): Thanks for having me.

BRAND: First of all, do you think it's right to say that Congress, when it granted all necessary and appropriate force in waging the war on terror, authorizes this program on surveillance?

Prof. COLE: Absolutely not. And the reason I say that is that if you look at the Foreign Intelligence Surveillance Act, Congress expressly addressed in that act the situation of wartime spying. And it said that the president could engage in warrantless wiretapping during a war but only for the first 15 days after the war commences. So Congress expressly addressed this issue, limited his authority to 15 days and then made it a crime to conduct any wiretapping beyond that authorized by the statute.

BRAND: And this is the 1978 law, the Foreign Intelligence Surveillance Act. But does the congressional authorization that was passed after 9/11--does that supercede that law, and does it, in fact, grant the president, as he claims, this surveillance power?

Prof. COLE: Not at all because the Foreign Intelligence Surveillance Act provision that I cited contemplates a declaration of war, an authorization to use military force. And it says when there is an authorization to use military force or a declaration of war, which is an even more formal authorization to use all necessary appropriate force, at that point the only warrantless wiretapping authority that the president may have is during the first 15 days of the conflict. After that, you've got to go through the Foreign Intelligence Surveillance court or you're engaged in criminal conduct. So Congress could not have been more clear about the limits they sought to impose on the president. And rather than abiding by those limits or going to Congress and asking the limits be changed, the president simply secretly and unilaterally violated the law.

BRAND: But, David Cole, I'm wondering if the courts have weighed in on this matter. This is, after all, a case of presidential power. And I'm wondering if the Supreme Court has ever ruled on this.

Prof. COLE: Well, in fact, the Supreme Court faced a remarkably similar argument from President Truman during the Korean War when he unilaterally ordered the seizure of steel mills because there was a threat of a nationwide strike. And he said, `As part of my commander in chief authority, I need to keep the war going. We need munitions. The steel mill strike will interfere with the war. Therefore, I'm going to seize the steel mills.'

And his action was challenged in the Supreme Court, and the Supreme Court said, `You're commander in chief of the Army and the Navy. You're not commander in chief of the country and its inhabitants.' And because Congress had specifically considered and declined giving the president this power before the Korean War, the court held he could not simply unilaterally assume that power during the war. So I think the Supreme Court precedent from 1952 is clearly on point and suggests that the president violated the separation of powers and, in this instance, a criminal law in going forward without Congress' approval.

BRAND: So where do we go from here? The president says he's going to keep doing this?

Prof. COLE: Well, I think the way it works in a democracy is now that we all know about it, there will be public accountability; there will be hearings. Senator Specter has already said that this is number one on the agenda after the Alito confirmation hearings. And I think there will be a serious look at whether this is lawful. And thus far the justification that the administration has put forward is a very, very weak justification. And I think senators and congressmen from both sides of the aisle have said so.

BRAND: David Cole is a professor at Georgetown University Law Center.

Thank you very much.

Prof. COLE: Thank you.

BRAND: And you can also get analysis of the domestic spying uproar from NPR Washington editor Ron Elving. His Web-only column is at npr.org.

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