Debating the Fate of Domestic Wiretapping

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Although a federal judge ruled this week that the NSA's warrantless wiretapping is unconstitutional, President Bush vigorously defends the program, saying he strongly believes it is constitutional. The case raises questions of presidential authority, government secrecy, and the privacy of people whose commnunications are intercepted. Jeffrey Rosen, law professor at George Washington University and legal affairs editor at the New Republic, and Doug Kmiec, law professor at Pepperdine University in Malibu, Calif., offer their perspectives.


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block.

Today President Bush vigorously defended his domestic wiretapping program, saying he strongly disagrees with a federal judge's ruling that declared it unconstitutional. Yesterday, U.S. District Judge Anna Diggs Taylor struck down the warrantless surveillance effort.

This morning, speaking to reporters at Camp David, the president said that those who oppose the program do not understand the nature of the world in which we live.

President GEORGE W. BUSH: The American people expect us to protect them and therefore I put this program in place. We believe, strongly believe, it's constitutional. And if al-Qaida is calling into the United States, we want to know why they're calling.

SIEGEL: Judge Taylor's ruling is under appeal. It raises questions about presidential authority, government secrecy and the privacy of people whose communications are intercepted.

And we have some questions about it for two legal scholars whom we call upon often here. Jeffrey Rosen, of George Washington University and the New Republic magazine, and Douglas Kmiec of Pepperdine University Law School. Welcome to both of you.

Professor JEFFREY ROSEN (George Washington University): Good to be here.

Professor DOUBLAS KMIEC (Pepperdine University Law School): Thank you.

SIEGEL: First Jeffrey Rosen, as I understand it the plaintiffs, including the American Civil Liberties Union, figured that Detroit was a promising jurisdiction for them. But even by that optimistic standard Judge Taylor seems to have issued a very sweeping ruling against what's referred to as the Terrorist Surveillance Program.

Professor ROSEN: Well, she did. She really gave them more than they could have possibly hoped for. But there were two parts of the opinion and one was more controversial than the other. The claim that it violated federal law is one that many Republicans and Democrats have long argued, that essentially Congress, in the Foreign Intelligence Surveillance Act, required a series of procedures that the Bush administration has ignored in this program and also that Congress failed to authorize the program in the days after 9/11 when it gave the president power to find the perpetrators of those attacks. She held that and that's a fairly solid ruling.

But she went beyond that to say in addition the program violated the Fourth and First Amendments to the Constitution, and she had some very exciting rhetoric about how King George tried to seize the diaries of colonists and the Fourth Amendment was passed to prevent this, and she would stop this from ever happening again. It's that part of the decision that some people feel was a little rhetorically inflammatory. But we shouldn't lose sight of the fact that the bottom line is not especially legally controversial, at least amongst some Republicans and Democrats.

SIEGEL: Douglas Kmiec, will this decision stand up on appeal?

Professor KMIEC: I think the rhetorical flourishes that Jeffrey just alluded to will make it difficult to sustain the opinion on appeal. There were two parts to the opinion, one statutory and one constitutional. I think the constitutional part is the weakest of it, but I think there's still a debatable argument about whether or not the president had either inherent authority as a matter of wartime power to exercise the surveillance program or whether Congress, in its sweeping grant of an authorization for the use of military force, overrode the statutory limitations that exist in FISA.

I would not expect the administration to give up either argument. I would expect both to have traction on appeal.

SIEGEL: The administration has been criticized for taking a very expansive view of executive authority. Does this case represent a challenge to that view? Jeffrey Rosen?

Professor ROSEN: Well, it does. And what's so striking is that Judge Taylor was able to cite the recent Supreme Court decision in the Hamdan case as explicitly and unequivocally rejecting the Bush administration's broad claims of unitary executive authority. The Supreme Court said that the use of force resolution after 9/11 did not authorize the indefinite detention of terrorists or their trail by unauthorized military commissions. And in this case, Judge Taylor said, nor did it authorize a surveillance program that seems to clearly violate federal law.

So basically most of the courts that have considered this question, from the highest court in the land down to a district court, have rejected the administration's repeated arguments that they, using the president's authority as Commander in Chief, can ignore or bend the laws that they disagree with. And for this reason, I wouldn't hold my breath about courts actually accepting these arguments.

SIEGEL: Douglas Kmiec, do you think that this is an argument - the administration's defense of its own authority - that will not survive in the end?

Professor KMIEC: Well, I think these cases have to be understood in the context in which they're being litigated. Robert, I think the present context is that we have just exposed a rather serious airline hijacking plot that would have resulted in the massive loss of life. I think the ability to expose that plot largely depended upon gaining good surveillance and intelligence information about those participating.

I think the president has historical support on his side. Franklin Roosevelt, Woodrow Wilson, numerous presidents have engaged in military intelligence activities. It is, in fact, an incident of war. As the Hamdan court, I think, also found that the president had authority to detain individuals at least for the length of that war.

So I don't think the president's going to give up that argument. I don't think he responsibly can give it up given the nature of the threat that the country faces.

SIEGEL: Where does this all go from here? The case will be appealed in the courts but simultaneously, the Congress is considering changes to FISA, to the Intelligence Surveillance Act, that would accommodate this sort of surveillance. If the Congress acts, it doesn't change whatever damage was done to the plaintiffs in the past, but it would eliminate whatever the problem might be for the future, I assume? At least on statutory, not constitutional, grounds.

Professor ROSEN: It would. And the judge expressed proper frustration with the fact that the president has not until now gone to Congress and asked for explicit authorization of the program, which he could do at any point. It's interesting that the Congressional debate has not been visibly affected by the Supreme Court's decision in Hamdan. Congress right now is considering three different approaches. Republicans want to authorize the entire program. Democrats want to ban it. And moderates like Specter would like to split the baby. That debate seems to be progressing regardless of what the Supreme Court said. As the polarized response to this decision suggests, it'll continue regardless of what this judge says. And in the end, Congress will have to decide where it wants to draw the line, as it should. It's time for Congress to step up to the plate.

SIEGEL: Douglas Kmiec?

Professor KMIEC: Congress clearly has its work cut out for it. There are three very constructive proposals that have been made, perhaps more at this point. The administration does seem to be in agreement with at least two of them, that put forward by Senator DeWine, some agreement with respect to Senator Specter's proposal.

But I think one of the troubling things of Judge Taylor's opinion is that she strikes down this activity on both constitutional and statutory grounds. If she's saying that even Congress can't authorize this activity, I think the opinion is even more troubling and more intrusive and more endangering of the national security of the United States than otherwise. I would hope that's not what she's saying. I would expect the Sixth Circuit, the appellate court, to eliminate those constitutional claims, thereby leaving the entire question in the lap of Congress, where it politically should remain as an accountable body.

Professor ROSEN: She certainly was not saying that Congress couldn't authorize it. She said the president's power was at its lowest ebb because Congress had forbidden this program by passing the Foreign Intelligence Surveillance Act, and were Congress to authorize it, I think that would be consistent with the logic of Judge Taylor's opinion.

SIEGEL: Jeffrey Rosen, Douglas Kmiec, thanks to both of you once again.

Professor ROSEN: Thank you.

Professor KMIEC: Thank you.

SIEGEL: Jeffrey Rosen, professor of law at the George Washington University in Washington, D.C., and legal affairs editor of The New Republic. And Douglas Kmiec, professor of law at Pepperdine University Law School in Malibu, California.

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