Justice Department Offers Legal Reasoning for Surveillance

Renee Montagne speaks with Steve Bradbury, head of the Justice Department's Office of Legal Counsel, about the legal justification for the Bush administration's controversial domestic surveillance program. Bradbury says existing laws allow for the program because it identifies enemies in the ongoing war on terror.

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RENEE MONTAGNE, host:

Britain is debating several antiterrorism measures. At the same time, Americans debated domestic eavesdropping program. The National Security Agency has monitored the phone calls and the e- mails of some Americans and legal residents communicating with people outside the U.S. And it did so without warrants, as part of a search for terrorists.

Yesterday, the American Bar Association said the president exceeded his authority under the constitution. This morning, we're going to explore the administration's legal defense. Steve Bradbury is head of the Justice Department's Office of Legal Council, which helped develop the legal justification for the NSA surveillance program. Good Morning.

Mr. STEVE BRADBURY (Head of Office of Legal Council, Justice Department): Good morning.

MONTAGNE: Let me just give some information here. Essentially, there are two laws that contradict each other, or seem to. The 1978 Foreign Intelligence Surveillance Act, FISA, prohibits domestic eavesdropping without court approval.

On the other hand, the administration says that Congress gave the president wide authority after September 11th. So, are you saying, the vote after 9/11 to let the president use military force, trumps the older law?

Mr. BRADBURY: Not really. The FISA statute, in its central prohibition, section 109, contains the phrase, except as authorized by statute. That is to say, FISA says, you don't do electronic surveillance, except as authorized by a statute.

The authorization for the use of military force is a statute. And we think it fairly contains within it the authority for the president to undertake communication's intelligence focused at the enemy in the current armed conflict.

MONTAGNE: But in arguing that intelligence can be folded into a statute authorizing the use of military of force, it seems by that logic that one could listen to purely domestic communications, or read citizens' mail, if that was thought to be going overseas. Under that logic, what couldn't the federal government do?

Mr. BRADBURY: Well, fortunately, we don't need to explore the limits of the president's authority during a time of armed conflict, because here, what we're talking about is the interception of international communications of those persons reasonably believed to have links to the enemy in this particular armed conflict.

MONTAGNE: But theoretical as it may be, under this interpretation of yours having to do with surveillance, could the government, or could the government not read citizens' mail?

Mr. BRADBURY: Well, that is not something that we have analyzed, and it's not something we're advocating here. We're talking about something limited to an effort to try to identify who the enemy is. And whatever, as I say, the theoretical limits might be, here, we're talking about something that's comfortably well within the traditional limits.

MONTAGNE: The fact that the program's existence has been made public, what is the reason not to go back to Congress and get some sort of congressional authorization?

Mr. BRADBURY: Well, part of the program has been made public, and of course, the program itself remains highly classified. There are a lot of operational details for which the government needs to maintain secrecy. So, whatever Congress may do going forward must be done in a way that minimizes the public disclosure of operational details, so that our enemy continues to be in the blind in terms of what are capabilities are, and our actual activities. Maintaining the secrecy of the program is difficult to square with an open and public debate, and that's always the balance that has to be played off, when you're talking about these sorts of intelligence programs.

MONTAGNE: Are you saying you won't go back to Congress?

Mr. BRADBURY: Well, I think that the administration has made it clear that we will be open to anything that Congress may want to propose. At this point, I don't think legislation is something the administration is seeking. But again, there will be ongoing communications with the leadership of Congress, and the leadership of the intelligence committees.

MONTAGNE: Now, this program still must be reauthorized by the attorney general every 45 days. Could your office recommend that it not be reauthorized?

Mr. BRADBURY: Well, it is something that undergoes a review, both in terms of the necessity of the program from an intelligence angle, and also the legality of the program. That is significant, because, under the Fourth Amendment, any surveillance undertaken needs to be reasonable. And a reasonableness analysis is something that takes into account all circumstances. And as circumstances may change, the analysis may change. And so, therefore, it's part of that periodic review that we are constantly assessing the reasonableness of the program for Fourth Amendment purposes.

MONTAGNE: Thank you very much for joining us.

Mr. BRADBURY: Thank you. My pleasure.

MONTAGNE: Steve Bradbury is head of the Justice Department's Office of Legal Counsel, which helped develop the legal justification for the NSA domestic surveillance program.

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