The Law Behind NSA EavesdroppingPresident Bush maintains Congress gave his administration the power to eavesdrop on some domestic phone calls without warrants as part of broader "use of force" authorization. Many in Congress disagree.
President Bush maintains Congress gave his administration the power to eavesdrop on some domestic phone calls without warrants as part of broader "use of force" authorization. Many in Congress disagree.
Read the Bush administration's legal justifications for the NSA's warrantless wiretapping — and the challenges to those arguments posed by the nonpartisan Congressional Research Service.
This is the day Attorney General Alberto Gonzales appears before Congress to defend eavesdropping on Americans without a court order. President Bush calls it a terrorist surveillence program, though the Washington Post reports that most people targeted turned out not to be terrorists. The administration says its legal authority to act comes from at least two places. One is the president's war power under the constitution.
NPR's David Welna has the background on the other.
DAVID WELNA reporting:
Three days after the 9-11 attacks, Congress passed what's called an Authorization for the Use of Military Force resolution. It said the President could, quote, "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." It also applied to any groups or persons who harbored those perpetrators, all in the name of preventing future attacks of international terrorism against the United States.
Speaking last month in Kentucky, President Bush cited not only his constitutional powers as Commander In Chief, but also that Congressional Resolution as legal grounds for the warrantless spying program.
President GEORGE W. BUSH: Congress and the authorization, basically, said the President ought to, they, an authorization in the use of troops ought to protect us. Well, one way to protect us is to understand the nature of the enemy. Part of being able to deal with this kind of enemy in a different kind of war is to understand why they're making the decisions they're making inside our country.
WELNA: But the Judiciary Committee's top Democrat, Patrick Leahy, says the Congressional Resolution was all about going after Osama bin Laden.
Senator PATRICK LEAHY (Democrat, Vermont): And now we find the Administration, instead of saying, sorry we didn't catch Osama bin Laden even though you gave us the authority, we now want to use the authority as legal justification for a covert, illegal spying programs on Americans.
WELNA: And former Democratic Senator Tom Daschle, who was majority leader at the time of the attacks, says the Administration tried and failed to have the resolution cover domestic as well as international actions.
Mr. TOM DASCHLE (Former Senate Majority Leader): They came to us and asked if they could have the authority to take the all necessary actions clause that we had put into the resolution and apply it to the United States as well. We denied it. So, I think that their assertions that they have that authority are just flat wrong.
WELNA: Some Republicans are complaining as well. South Carolina Senator Lindsey Graham recently assured Democrats on the Judiciary Committee that he, too, has questions.
Senator LINDSEY GRAHAM (Republican, South Carolina): I am very concerned that the war resolution is being interpreted overly broad. I think that is a legitimate concern for the Congress to have, and I look forward to working with you.
WELNA: Even as the resolution was being debated three days after the 9-11 attacks, lawmakers such as Massachusetts House Democrat John Tierney insisted that Congress not write the President a blank check.
Senator JOHN TIERNEY (Democrat, Massachusetts): So, while we specifically have not declared war tonight, we do make a law by which the President may engage United States armed forces against others. Congress's responsibility, I believe, Mr. Speaker, obligate us to remain informed and to have consultation with the President concerning any action under this resolution.
WELNA: But Republican Congressman Henry Hyde of Illinois argued that the resolution should not restrict the President.
Congressman HENRY HYDE (Republican, Illinois): In any other case, I might understand and sympathize with the gentlemen's interests in keeping the President on a short leash as he goes about exercising the authority we give him tonight. But this is not any other case.
WELNA: Still, because that resolution never spelled out such authority, the debate is bound to continue well beyond today's hearing.
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The NSA is the federal government's chief eavesdropping agency.
The National Security Agency might be described as the federal government's chief eavesdropper. Created in 1952 to centralize and broaden intelligence efforts previously managed by the military, the NSA is so secretive that for years, the U.S. government wouldn't even acknowledge its existence.
The NSA intercepts and decodes communications around the world to protect the United States from foreign security threats. In so doing, it spies on individuals, organizations and governments. The agency intercepts e-mails, phone calls, faxes and other communications using a system of space-based satellites and ground-based listening posts, among other tools. It shares the analyzed information with other government agencies.
The agency also keeps close tabs on its own people, tracking such details as who carpools to work together. It administers polygraph tests to employees and keeps detailed computer files on them.
During the Cold War, the NSA helped start the computer revolution by working with technology companies to develop faster, more sophisticated code-breaking machines. Cutting-edge technology helped the agency snoop on Soviet leaders, whose phone calls were regularly monitored by NSA employees.
In 1999, investigators revealed the existence of Echelon, an electronic eavesdropping and intelligence-sharing network that the NSA developed during the Cold War with Britain, Australia and other allies to spy across national borders. The network was reportedly so extensive that it could potentially pick up on most communications on the planet. The next year, former CIA director James Woolsey admitted that the U.S. had been spying on foreign firms to see whether they were using bribery to win contracts from competing American companies. Woolsey did not specify whether Echelon was involved, but critics suspected it was. Privacy advocates questioned whether the NSA was using Echelon to spy on Americans as well.
The agency has been known to spy on Americans before. Most notoriously, in the 1960s Presidents Johnson and Nixon used the agency to listen in on hundreds of Americans, including Vietnam War protesters and the Rev. Martin Luther King Jr.
Revelations about these Vietnam-era abuses were investigated by Congress in the mid-1970s, prompting lawmakers to rein in the NSA with the 1978 Foreign Intelligence Surveillance Act. The law lets the agency surveil Americans suspected of being agents of a foreign power with the permission of a special FISA Court. Judges on the court are appointed by the U.S. chief justice for seven-year non-renewable terms. In 2002, Congress added four new judges to the court to deal with an anticipated increase in cases resulting from the war on terrorism. The court has rarely denied a request for a warrant.
The willingness of the FISA court to accommodate requests is one reason why many civil libertarians and lawmakers are concerned by revelations that since 2002, the NSA has been bypassing the FISA Court and conducting surveillance on domestic communications without a warrant. Critics emphasize that FISA allows emergency wiretaps, without a warrant, for 72 hours, as long as a warrant is obtained within that time frame. The Bush administration counters that FISA's warrant requirements don't allow the spy agency to keep up with the flood of phone and Internet traffic it needs to monitor for terrorist threats in a timely manner. And once again, lawmakers find themselves asking whether the agency that eavesdrops on the world may itself need to be watched more closely.