Domestic Surveillance, Pro and Con The White House is organizing a series of public events to explain why domestic wire-tapping is necessary in the fight against terrorism. What are the arguments for and against government eavesdropping on American citizens?
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Domestic Surveillance, Pro and Con

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Domestic Surveillance, Pro and Con

Domestic Surveillance, Pro and Con

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From NPR News in Washington, D.C., I'm Neal Conan. And this is TALK OF THE NATION.

In the face of criticism over what many regard as illegal domestic espionage, the Bush Administration launched a vigorous defense of what the president now describes as a terrorist surveillance program.

President GEORGE W. BUSH: And so I had all kinds of lawyers review the process. We even briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program. You know, it's amazing when people say to me, well, he's just breaking the law. If I wanted to break the law, why was I briefing Congress?

CONAN: The politics and the legal arguments of warrantless wiretaps, plus a difficult transfer of power in Kuwait and the history of political succession, and your emails. It's THE TALK OF THE NATION.

First, the news.

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

After the New York Times reported in December that President Bush authorized the National Security Agency to eavesdrop on American citizens without a warrant, the administration spent a couple of weeks defending what many described as illegal domestic espionage. Over the past week or so, though, the Administration issued lengthy legal arguments in support of the program, which they now describe as a terrorist surveillance program.

Last week, Karl Rove, the president's political advisor, made an aggressive speech trumpeting the policy, and this week the Administration launched an election-style campaign to hammer home two points: that the program is both legal and critical to protect the country from another terrorist attack. That, as Osama bin Laden, issued fresh threats in an audiotape. Week after next the Senate Judiciary Committee holds hearings that will focus on legality, the separation of powers, the Fourth Amendment protection against unreasonable searches, and the extent of Presidential power in time of war.

Later in the program, Kuwait's parliament ousted an emir, an ailing emir today, resolving a nine-day political crisis and illustrating the age-old problem of transfers of power. But first, domestic espionage and terrorist surveillance. In a few minutes, we'll hear some of the legal arguments on both sides, though we want to catch up on what we know about this program and about the politics developing around this issue.

If you have questions about what we know and what we don't about the positions of Republicans and Democrats, give us a call now. Again, we'll get to the legal arguments a bit later. The phone number is 800-989-8255, that's 800-989-TALK. The email address is

We begin with David Savage, Supreme Court Correspondent for the Los Angeles Times. He's with us here in Studio 3A. Always good to have you on the program, David.

Mr. DAVID SAVAGE (Legal Correspondent, Los Angeles Times): Hi, Neal.

CONAN: David, a month ago it looked like the disclosure of this program was going to be a political liability, now the Administration has apparently decided to use this program to their political advantage, if they can.

Mr. SAVAGE: Yes, and the polls seem to show the American public is evenly split on this. I saw a poll the other day that said, Do you think it's right or wrong for the government to spy on Americans who are suspected of having terrorist ties without a court order? Forty-eight percent said it was right, forty-seven percent said it was wrong. Very much divided along partisan lines; most Republicans, I think by a 3-to-1 margin, support the program and say this is a terrorism program, most Democrats, by about the same margin, oppose the program and say this is the president breaking the law and spying on Americans.

CONAN: In fact, we actually know a little of what is going on, but we know a little bit more than we did when the Times disclosed this program last December.

Mr. SAVAGE: General Hayden had a briefing yesterday and talked about it. He was head of NSA during this period. He described a very narrowly focused program. He kept saying, it's focused and targeted; that is, we were, this is not a dragnet program, we were tracking calls from people, either al-Qaeda operatives or other terrorists, international calls coming in to the United States, and that's all it was. He described it as a program that sounds very reasonable.

CONAN: And he also said if your daughter goes overseas to complete her course in Arabic, we will not intercept her call.

Mr. SAVAGE: Yes, and he said a little bit unclear on how this screen works, he said we only listen in on people where there's a reasonable basis to believe that they're tied to al-Qaeda. And who decides reasonable basis, he said was sort of a Colonel or somebody, a military officer on duty. But he said it's not your daughter or your friends or people, your friends overseas. It's only people who are linked to al-Qaeda.

CONAN: And of course, thereby lays the rub. If they have a reasonable cause to believe that this phone message should be intercepted, well, why, many people will say, why don't they go to the special court that Congress set up in 19, in the late 1977s, uh, 1970s, the Foreign Intelligence Surveillance Court, and get a warrant, do it legally?

Mr. SAVAGE: Yes. Yes, the FISA Court, as its known, operates very effectively for the government. You go to this Court, you say we've got probable cause to believe this person is a foreign agent, and almost always they say, fine, here's a warrant. The only thing I can guess from what General Hayden said is they don't have quite that. They don't have probable cause, they've got something less than that; some reasonable basis, but, you know, in other words, an al-Qaeda person could be calling somebody in San Diego, that would give you a reasonable basis perhaps for listening to those calls, but you really don't know who that person in San Diego is. That's all I can guess, Neal, is that they're, they don't have probable cause and that's the reason they didn't use the FISA process.

CONAN: General Hayden, who's now number two to the Intelligence Czar, but he also said something interesting. In my professional opinion, he said, if this program had been in place before 9-11, we would've been able to detect al-Qaeda operatives in the United States and identify them as such.

Mr. SAVAGE: Yes, I guess what he's saying is that we've been, we were, we are now following phone calls from al-Qaeda operatives to people in the United States. We were not doing it back then. Had we done it, we might've seen a pattern of calls, maybe focused on a few people, taken a closer look at Mohamed Atta, or some people who were in the United States, and who knows, maybe interrupted the 9-11 plot.

CONAN: But according to the report of the 9-11 Commission, they did identify at least two al-Qaeda suspects, and the problem was they didn't know what to do with them.

Mr. SAVAGE: Yes, and there also seemed to be something to dropping the ball. You know, that was during the period when they talked about this wall between foreign intelligence and the FBI handling standard criminal cases, and there was sort of a doctrine that we're not supposed to communicate. So, to some degree, the two agencies sort of dropped the ball on some of that.

CONAN: Now, there' a couple of venues in which this is being challenged. Last week several groups filed legal challenges, filed suits, by civil liberties groups seeking court orders to ask the courts to stop this as violations of search and seizure. Do they have a case?

Mr. SAVAGE: Well, they might, but I suspect it'll take a while. The Supreme Court in particular does not get involved in deciding these big constitutional clashes quickly. If they get decided it tends to be several years down the road. The trick for this lawsuit will be finding people who have standing, somebody who can say to a judge or say to a court, I, my conversations were listened to, I was in some way injured by this program. They've got a number of writers and academics and people who are opposed to it, but I think it likely that the court's going to say that these people don't have standing to challenge this program.

CONAN: Elaborate on that just a little bit, because I think that confuses people.

Mr. SAVAGE: Well, the notion of standing is that you have to be injured in some way by, you personally, not just that I'm upset by this or I don't like it or I'm a taxpayer and I don't think the government should be doing this...

CONAN: ...should spend my money to do this.

Mr. SAVAGE: Yes, you have to say, I was in some way suffered a personal injury, my rights, my personal rights were violated in some way. And since we don't really know who the government's been listening to, and they've not been bringing criminal cases against anybody, I think, at least initially, it's going to be hard to find somebody who can say I was, my conversations were eavesdropped on, and that information was used against me.

CONAN: Um hm. And, can't people file Freedom of Information Act requests to see if they were wiretapped?

Mr. SAVAGE: I don't know the answer to that. I think the answer would be no. The Freedom of Information Act is one of those things that sets out of general principle the freedom of information, and then it's got a whole series of exceptions. And I think there's an exception for law enforcement records and I think for anything related to national security.

CONAN: Um hm. And, of course, there is another venue where it can be challenged and that's going to be these hearings by the Senate Judiciary Committee. Senator Arlen Specter, who of course we last saw holding hearings for Judge Samuel Alito and of course his nomination was reported on favorably by the Judiciary Committee today, but anyway. In, a week from Monday, he's going to be holding a hearing with Attorney General Alberto Gonzales; sole witness that day appearing before the Senate Judiciary Committee to answer questions about what's going on and why he thinks it's legal.

Mr. SAVAGE: Could be interesting. This same poll I referred to earlier said that there were more than twice as many Americans who were following this wiretap story than were following the Alito hearings. So Arlen Specter will start with some good public interest.

I also think he's a very smart guy and seems very troubled by this program. The administration basically has made the argument that when we authorize the president to use all necessary and appropriate force to go after al-Qaeda, that authorization also allowed the president to engage in domestic wiretapping.

I don't think Specter or many of the other senators, including Lindsay Graham, don't buy that argument. So I do think that it could make for an interesting hearing because unlike the Alito hearing, the chairman and some of the Republicans, I think, might have some sharp questions for the Attorney General.

CONAN: Lindsey Graham, a Republican from South Carolina.

Mr. SAVAGE: Yes.

CONAN: Let's get a caller on the line if you'd like to join us; 800-989-8255, e-mail is and we'll have more on the legal arguments in a couple of minutes. But let's talk now with Harley; Harley calling from Phoenix, Arizona.

HARLEY (Caller): Hi, good afternoon.

CONAN: Good afternoon.

HARLEY: Thanks for taking the call.

CONAN: Mm hmm.

HARLEY: With all the concern about the violation of privacy and how that is confused with issues raised to national security. In the event that someone is prosecuted and then it's determined that that was all in error and a great apology, of course, is going to be made to someone. But what recourse is the public going to have in the event that these kinds of errors take place from wiretapping that's questionable in the beginning?

CONAN: David, I think that's part of the legal argument that's being brought by one of the defendants in a case in Florida who suspects he may have been wiretapped and is now involved in one of these lawsuits.

Mr. SAVAGE: Yes, I guess usually if it's you, as an individual, your first recourse is to say throw out the evidence against me that you got by this illegal means, if it's deemed to be a warrantless illegal wiretapping. The second is you can actually file a civil suit and seek damages against the government.

That's the case we talked about from the Nixon era that Sam Alito was involved in. Someone sued John Mitchell, Nixon's Attorney General, for having ordered a wiretap that he was picked up on. So those cases are few and far between and you don't win too easily, but technically, somebody could sue Attorney General Gonzales down the road and say he ordered an illegal wiretap of me.

CONAN: Mm hmmm. Or his predecessor, John Ashcroft, depending on when it happened.

Mr. SAVAGE: Yes, yes.

CONAN: This has been going on for four years.

Mr. SAVAGE: Yes.

CONAN: Harley, thanks very much.

HARLEY: Thank you, appreciate it.

CONAN: And what can Congress do even if they do decide that this program is illegal? A lot of people say, well, even if it's illegal, we should make it legal, amend the FISA Act to allow this to happen.

Mr. SAVAGE: That's not clear at all is it? You know, first of all, it would be interesting if Congress did sort of take a stand and say the president can't do this without legal authority. But it would be very hard to stop such a program. You can imagine a united Congress doing it, but it's hard to think that the Republican-controlled Congress, House and Senate would take a stand and say, "You must stop this program."

CONAN: David Savage, thanks very much. As always, we appreciate your time.

Mr. SAVAGE: Thanks, Neal.

CONAN: David Savage is a Supreme Court correspondent for the Los Angeles Times and he joined us here in Studio 3A. We're talking about domestic surveillance and the rights and wrongs of the president's program. We'll be back after a short break, but we want to hear from you about the legality of this case when we come back, 800-989-8255. The e-mail address is

I'm Neal Conan; this is TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Today we're talking about domestic espionage and warrantless wiretaps. The White House has begun a series of events to defend its program. Today Attorney General Alberto Gonzales told an audience at Georgetown University here in Washington the program is critical to prevent another terrorist attack on U.S. soil.

If you'd like to join the conversation about the legality, give us a call: 800-989-8255, 800-989-TALK; e-mail us And we're joined now by two gentlemen who were in the audience at Georgetown today to listen to the Attorney General.

David Cole is a professor of law at Georgetown University's Law Center; author of Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security.

Robert Turner is co-founder and associate director of The Center for National Security Law at the University of Virginia. They both have been kind enough to join us here in Studio 3A.

Gentlemen, thanks very much for being with us on TALK OF THE NATION.

Professor DAVID COLE (Professor of law, Georgetown University): My pleasure.

Professor ROBERT TURNER (Associate Director and Co-founder, Center for National Security Law, University of Virginia): Glad to be here.

CONAN: Robert Turner, why don't we begin with you and let's begin with the legal, what some people say is a legal conundrum. There is the FISA Act, which seems to say that the exclusive way you can do wiretapping domestically is under the authority of the FISA Court, with a warrant.

Prof. TURNER: You know I think that this is not a question of is anybody above the law, but rather which law is more important. That is to say the president has certain powers given him by the people through the Constitution. Throughout most of our history Congress has understood that includes complete control over intelligence.

And the question then is: Can Congress, by a single statute, amend the Constitution to take away from the president powers that he has. And every court that has considered this issue has said the president does have independent constitutional power in this area.

Every president, you can go back to Abe Lincoln when he was tapping telegraph lines; but Woodrow Wilson in World War I engaged in warrantless wiretapping. FDR in World War II issued an executive order; and when FISA was enacted, Attorney General Griffin Bell, the Attorney General under Jimmy Carter, told Congress this statute, of course, can't take away the president's independent power in this area and even the Clinton Administration said we believe the president has independent power to do this under the Constitution, but we still are asking you to expand FISA to include physical searches because it can be convenient and would avoid a possible constitutional quarrel in the courts where they wanted to make sure they got their convictions that would stand up.

CONAN: Yet, David Cole, I don't recall the Supreme Court ever saying that espionage on American citizens is okay without the approval of the court.

Prof. COLE: That's right and nor has the Supreme Court ever said that the president can violate a statute that Congress has duly enacted. And it isn't a situation in which the president has some constitutional authority and Congress cannot regulate. Congress, in this situation, regulated surveillance for foreign intelligence in national security purposes. It did so through a statute. The president signed that statute.

It said it's a crime if you conduct surveillance without statutory authority. It also specifically addressed the exact issue here. That is, what happens during war? It said when we declare war, you get 15 days and no longer to do warrantless wiretaps. And the president, in the face of that statute, which clearly restricts his authority didn't go to Congress as they contemplated asking for more power. He simply, in secret, violated a clear criminal prohibition.

No president, to my knowledge, has done that in the past and the courts have certainly never upheld a president, even in wartime, overriding a congressional statute to the contrary. All the examples that Professor Turner presented were before Congress had ever regulated the subject and there, yes that's a twilight zone, the president may have the power; but once Congress has spoken, no.

CONAN: Professor Turner?

Prof. TURNER: Okay well, first obviously, the Supreme Court has not resolved the issue. The Supreme Court in 1972 in the Keith case did say that the president must get a warrant or the government must get a warrant for domestic organizations for national security searches. This was a Black Panther case...

CONAN: Mm hmmm.

Prof. TURNER: ...but Justice Powell, who was ABA President back in the early 60s, has said the president does have independent authority to engage in warrantless wiretaps. Expressly distinguished it and said we're not addressing the issue of if this were agents of foreign powers or foreign powers whether the president could do this. And that was proper. They're not supposed to resolve constitutional issues that aren't before them.

But as far as courts after FISA was enacted, go back to 2002 when the Foreign Intelligence Surveillance Court of Review, the appeals court setup under FISA, considered the issue and noted that every appeals court that had ever considered the issue had found independent presidential power. And the court said we assume that's accurate and if it is accurate, FISA could not take away that presidential power.

So we've got a very recent case by the court that actually Congress setup to oversee the FISA statute that says the president has independent power under the Constitution that is higher than the power of Congress through statute. They could amend the Constitution but they cannot usurp presidential constitutional power simply by statute.

Prof. COLE: Well, as to the recent decision of the FISA Court of Review, it upheld FISA. If it has said what Professor Turner is suggesting it said, it would have struck FISA down as an impermissible intrusion on the president's power; no, it upheld FISA. And what it did is it said quite accurately, that before FISA was enacted, several courts had said that the president has inherent authority to engage in this action where Congress has not spoken on this subject.

But what the Supreme Court has long said is that it matters whether Congress has spoken on this subject or not. If Congress has not spoken on the subject then, the Supreme Court says, the president has fairly wide discretion in what he can and cannot do subject to other constitutional limits. But the Supreme Court says when Congress has spoken on a subject over which it has the power to regulate, and certainly it has the power to regulate whether Americans can be wiretapped, then the president's authority is at its lowest ebb and his authority can be upheld only if Congress has no authority to act in the area.

Congress clearly has authority to act in the area, they expressly addressed this issue; and it's interesting that the administration is not, for the most part, making the argument, Professor Turner's argument, FISA is unconstitutional.

They are arguing instead that Congress somehow gave it the authority to wiretap Americans for four years in the authorization to use military force against al-Qaeda, which said not one word about wiretapping, and which is a general grant of authority that is overridden by the very specific provision I referred to earlier which says even when we declare war, a more extreme act than an authorization to use military force, the president has 15 days and only 15 days to do warrantless wiretapping and that's to give him time to come to us if he needs broader authority. But he didn't come to them. He simply went ahead and violated the law.

CONAN: we're going to get listeners involved in the conversation in just a moment but Professor Turner, I'm sure you want to come back on the authorization of force argument.

Prof. TURNER: Yeah well, first, there is a very important point here and that is Marbury v. Madison, the most famous of all Supreme Court cases, Justice John Marshall said that an active Congress made contrary to the Constitution is not law. What we're talking about, the Supreme Court has frequently struck down acts of Congress that usurped presidential power. In The United States v. Klein, they tried to take away the pardon power by indirectly just controlling the Court of Claims jurisdiction and saying you can't, you know, unless you get a pardon you can't go to court and get it enforced. So you can't have your rights.

And the Supreme Court said this act usurps the president's pardon power. And what I'm arguing is, and we can spend time on this because it's important and it is not fully understood, when the founding fathers gave the president executive power under Article 2, Section 1, they included within that the general grant of foreign affairs power. I can give you quotes from Hamilton, Jefferson, Madison, Washington, John Jay, John Marshall. This was a very commonly understood thing that was understood by Congress until about the 1970s.

Now what the administration is arguing, and it's a reasonable case, is that FISA says the president cannot, in wartime, or cannot engage in these intercepts without statutory authority. When Congress authorized war in September 2001, it empowered the president to do all of those things that are normally done by a president during war.

For example, there is a statute that says no American can be detained by the government, save pursuant to a statute. The authorization of war did not authorize detaining Americans but a majority of the Supreme Court in the Rizole case said the authorization for the Use of Force Act did carry with it that power because that's a normal thing you do in war.

And certainly there's almost nothing more important in war than intelligence collection. Experts claim that World War II would have gone on for years had it not been for our intelligence benefits and we might be speaking German today had we not had the success we had in our breaking the enemy's codes and so forth.

CONAN: Well, it wasn't involving American citizens. Anyway, we'll get the listeners involved in the program now and I apologize for being so long at it.

Dave, Dave's calling from Grand Junction in Colorado.

DAVE (Caller): I think that point about what it would have done to help stop terrorism is really a moot point. We live in a society based on the rule of law. Just because we have a good reason to speed doesn't mean it's legal. The fact is the NSA was breaking the law by domestic wiretapping and I think that the government needs to stand up and protect itself and I think that the people of America need to stand up and prevent this type of illegal action from continuing.

CONAN: Mm hmmm. Professor Turner, I guess that's to you. Why didn't, in that 15-day period envisioned in the FISA Act after 9/11, why didn't the president go to Congress and say we, we need this program, we need to update it, could have been secret, didn't have to tell anybody, and he could have had it two weeks later?

Prof. TURNER: There are two issues here. First of all, we're not talking about domestic wiretapping. Apparently, at least what the attorney general is saying and others are saying is that every one of these calls involved a communication between someone outside this country and someone inside the country, and the someone outside the country was someone believed to be an al-Qaeda agent or officer or something like that...

CONAN: Or a sympathizer or supporter.

Prof. TURNER: So this is an international communication being accepted outside of the country. The issue of why they didn't go to FISA, well, under FISA, you can only get a warrant if you can certify to the court that the attorney general has probable cause to believe that the American target is a, a, an agent...

CONAN: An agent of a foreign power.

Prof. TURNER: An agent or, or, you know, a foreign power or agent of a foreign power. Often you don't have that. Let's look at a scenario. Let's say some al-Qaeda person sends an email to some Joe Six-pack in Peoria, and we don't know who Joe Six-pack is. Should we listen? It might be that bin Laden just bought a lamp on eBay, and he's saying, send it care of general delivery in Islamabad, Pakistan. Or it might be he's saying, on Tuesday, take the explosives to so-and-so to blow up the Lincoln Tunnel or something like that.

And the question is: Should the government be listening in when people we believe are our enemies that want to kill lots of Americans are communicating with people in this country? And you can't get a warrant if you don't have information to believe that the target is a, is a foreign agent, and when you don't know in wartime, I think the president has to come down on the side of caution and listen to those conversations, and the innocent people who are in those calls that have their rights violated and find out, hey, they learned I sold someone a lamp.

It's what we call collateral damage. It's just like in war. The president makes decisions that get innocent people killed in the same way some people are going to have some infringement on their rights in order that we can track down terrorists and save the lives of tens of thousands of Americans.

CONAN: Professor Cole, does it make any difference if only one of the people involved in this conversation is American?

Prof. COLE: No, but I, but I want to respond to the hypothetical that, that Professor Turner identified, because I think it's a myth here that's been propagated by the administration that just is inconsistent with the law, which is, if we are targeting a person abroad and that's the target of the surveillance and the surveillance is abroad, and the call happens to come into the United States, they can listen to that call. That is not covered by FISA. FISA is only implicated when they start to target U.S. persons, or when they start to collect information in the United States.

So, that's what we're talking about. We're not, nobody is suggesting that there's an inability to listen in on the calls of al-Qaeda to someone in the United States. What you can't do is then turn around and listen in to the person in the United States simply because he got that call, etc., unless you can show that that person is, in fact, an agent of a foreign power.

CONAN: We're talking about the controversy over warrantless wiretapping and you're listening to Talk of the Nation from NPR News.

And let's see if we can get another caller on the line. John, John calling from Little Rock, Arkansas.

JOHN (Caller): Yeah, yes, sir. I think my question's already been answered, but from, I was a police officer for several years and I worked on many federal wiretaps, and I know that most wiretaps come with the regulations at the end that within 60 to 90 days, you have to send a written letter and notify everyone that you've listened to, that they've been, their, their phone calls has been intercepted or email's been intercepted, and I just kind of curious if this is just a way to get around the notification because I know most terrorist plans and programs are long-term and they go for years and years and years and they plan. So, I was just kind of wondering if they're trying to use this to get around the notifications that are required within 60 to 90 days of listening to the call.

CONAN: David Cole?

Prof. COLE: Well, it's understandably, certainly we wouldn't want to send a letter to Osama bin Laden saying, we've been listening in on your phone calls, but...

CONAN: You might want to ask him what his address is.

Prof. COLE: Exactly.

Prof. COLE: But, but two points on that. First of all, if you're listening in on Osama bin Laden abroad, FISA doesn't apply at all. Second point, even where FISA applies, FISA does not require the written notification at any point that is required under Title, the Title III Criminal Wiretaps that the caller is referring to. So there is no issue of notification under FISA.

JOHN: Okay. I appreciate it. Thank you for taking my call.

CONAN: Thanks very much. Let's go to Abram, do I have that right, in Tallahassee?

ABRAM (Caller): Yes, it is.

CONAN: Go ahead, please.

ABRAM: Excuse me, I got a cold, gentlemen.

CONAN: Oh, that's all right.

ABRAM: Okay. It seems like a lot of semantics. As I listened earlier, when we deal with the reality of everything, and I think it was mentioned that, you know, we're not going to listen to your daughter who's calling from an Arabic country to the United States. The reality is that what other reasons would there be a probable call? If you get a call coming from an Arabic country to San Diego somewhere, of course that seems to be the most, you know, probable call to be listened to. So it just seems like a lot of, I guess, foolishness in the short term and so my, my, I guess, concern is, how can many Americans kind of just sit back and not take it seriously, the realities that we're dealing with?

We've kind of switched from domestic wiretapping to now calling it a larger terrorist issue when it's very difficult to kind of, you know, flush out those individuals that are not involved with any terrorist act. They don't want to mention all of the individuals that have been arrested and then have been found innocent and let go after three years and so forth. But it's just quite difficult. It's not so much a question as just a comment on everything.

CONAN: All right, Abram. Thanks very much for the call. I hope your cold improves.

ABRAM: Thank you.

CONAN: Appreciate it. The point, I guess, to get back to the collateral damage argument.

Prof. COLE: Yeah, and I think, you know, if President Bush says, you know, we're not going to be listening on your daughter's phone call, even if she's abroad, I don't think that's really the issue. I mean, you know, certainly there is a concern about whether people are wrongly being listened in on, but I think the broader concern really is this question of separation of powers.

We now have a president who has asserted secretly the power to violate a criminal statute in the wiretapping context; the power to violate a criminal statute in the torture context where they asserted the power to torture people, even where Congress has unequivocally prohibited it; the power to impose cruel, inhuman and degrading treatment on anyone who doesn't hold an American passport, again, alleged asserted secretly; and when the enemy combatant authority was challenged, the power to hold people on the president's say-so forever without a hearing, the administration took the position that the courts had no role to play in checking the president.

So what the issue is about here, really, is whether we're going to continue to live in a society that is bound by law in which the executive is subject to checks and balances, rather than a society in which the executive asserts that by invoking some magical words, commander in chief, he can ignore criminal laws on the books, written to restrict his authority.

CONAN: That's David Cole. Robert Turner, I know you want to come back on this, but we have to take a short break and we'll get to you after we come back. Again, if you'd like to join our conversation, 800-989-8255 or zap us an email: When we come back, we'll finish this conversation and also hear about rules of succession and transfers of power in Kuwait and in other governmental structures throughout history. I'm Neal Conan. You're listening to Talk of the Nation from NPR News.

This is Talk of the Nation. I'm Neal Conan in Washington. Here are the headlines from some of the other stories we're following here today at NPR News.

The Senate Judiciary Committee has advanced the nomination of Samuel Alito Jr. to become the next Supreme Court justice. Alito's nomination now moves to the full Senate, which could take a final vote before the end of this week.

And the federal government apparently had ample warning of the catastrophic damage that a storm of Hurricane Katrina's magnitude could cause to New Orleans. The Senate Homeland Security Committee released documents today reinforcing that claim. Details on those stories, and of course much more, later today on All Things Considered from NPR News.

Today we're talking about domestic surveillance. The president says it is a terrorist surveillance program and that he has support from legal experts and Congress to carry out such a program. Our guests are David Cole, professor of law at Georgetown University Law Center, and Robert Turner, co-founder and associate director of the Center for National Security Law at the University of Virginia.

Professor Turner, before the break, David Cole was talking about this as a case about presidential power and its extent in time of war. Do you agree?

Prof. TURNER: Yeah, it is about presidential power, but it's also about constitutional power, and if you go back and look at Federalist 64, John Jay talks about the importance of protecting sources and methods and intelligence, if you want to get intelligence, and he said, the Constitution has left the president free to manage the business of intelligence as prudence might suggest, that is to say, unchecked by Congress.

When Congress in its very first session passed an appropriation of $40,000, which was raised to fifty, which was 14 percent of the federal budget, a lot of money for foreign intercourse, it told the president that the president, this is a quote: "To the president shall account specifically for all such expenditures of the said money as in his judgment may be made public and for the amount of such expenditures as he may think it advisable not to specify and cause a regular statement and account to be sent to Congress (unintelligible)." In other words, Congress said, don't give us secrets; tell us how much you spent so we can replenish the kitty.

In 1818, Henry Clay, a great champion of congressional power, said that when the president spent money from this secret service account, it would be improper for Congress to inquire into how that money was spent. When Congress, in 1968, passed the Crime Control and Safe Streets Act and had Title III that governed wiretapping for the first time, it expressly said that this does not limit the president's independent power to engage in wiretapping for foreign intelligence purposes.

Every president that has considered it, every court that has considered it, including the court of appeals for the FISA court in 2002, has said the president does have this power, and the issue is, as I see it, may Congress usurp this power by simple statute? And the Constitution sets out very carefully how we amend the Constitution, and if we start allowing Congress by simple statute to seize presidential power, particularly in an area like this where the president's goal is to protect Americans from terrorist attacks, I think we're undermining the Constitution, we're undermining the doctrine of separation of powers, and I think we're serving our people very poorly.

CONAN: David Cole.

Prof. COLE: Well, I think the notion that the Federalists somehow would have been comfortable with letting the executive, who they sought to make very weak, be able to freely listen in on the conversations of any American by asserting the commander in chief authority, and that they would somehow have intended to bar Congress from regulating the subject, is, is ludicrous. And's true, in 1968, Congress said that the president has this authority because they had not yet regulated the area.

Now they've regulated the area. They've regulated it since 1978; we've lived with it since 1978 through several wars. No prior president has sought to violate the criminal law and ignore that statute. If there's a problem with the statute, the proper way for the president, or any other American, is to ask Congress to amend it, not to violate it in secret and then launch a public relations offensive to try to defend yourself.

CONAN: Mm-hmm. Let's see if we can get one more caller in. And this is Jesse, Jesse calling us from New London in Connecticut.

JESSE (Caller): Yes, my comment simply is, is more about how this is being politicized and maybe a little bit about how we're losing track of what's really going on here. It seems to me that both parties, you know, played a lot of or used a lot of political energy right after 9/11 to take the administration and the intelligence agencies to task over failures of 9/11.

And from what I understand about this whole issue, we're talking about 500 individuals that may have had their rights violated and, you know, I don't carry pom-poms for the Democratic or the Republican side. I like to see things happen in this country, and it appears that, you know, in light of what happened, in, in, in all the, in what happened in 9/11 and what the, you know, the fallout from the failures, you know, I think a lot of Americans would probably give up the right of less than, you know, their civil liberties on occasion if they've come under the scrutiny of the NSA for some reason or other.

CONAN: Do we know, gentleman, how many people are involved here?

Prof. COLE: We do not know. I don't know where the caller gets the 500 figure. The Times had reported on several thousand, but the fact of the matter is that the government is not telling us. But I, you know, it's not, I think the callers may be right.

It may be that had the president gone to Congress and said, look, I need broader authority here to wiretap Americans without warrants under these circumstances, and had set forth what those circumstances were, maybe we would have had a debate, and maybe Congress would have given it, given him that. They gave him a lot in the Patriotic Act. I don't know why he didn't ask for this. But that's the, that's the, that's the...

JESSE: I think you're losing, I think you're losing sight of something...

Prof. Cole: No, but that's the proper process. The proper process is to go through the public debate, and go through the legislature, and not simply, in the face of a clear, criminal prohibition, simply ignore it, and ignore it in secret for four years.

JESSE: I think the...

CONAN: Go ahead, I'm sorry, Jesse?

JESSE: Sure, the point I'm trying to make is I think the majority of Americans that are not involved in the Democratic Party or the Republican Party as major players or major contributors, are mostly interested in being safe and seeing these types of debates. You know, I mean, I understand the importance of this debate, but I think there's a larger importance here as to, you know, the safety of us on a regular day-to-day basis. And I think that, you know, unfortunately, the two political parties in this country try to find these type of issues, and try to make political hay with them.

Prof. COLE: I think everybody wants us to be safe and secure, but I think, at least I believe, that we can be safe and secure consistent with the rule of law, and that when we have a president who says he can violate the law in secret, on any number of issues, from surveillance to torture, to enemy combatants, then we're in trouble. Then we're in trouble.

JESSE: But I mean, I mean, you, (unintelligible).

CONAN: Okay. I'm afraid we're gonna have to leave it there. I know that we could go on with this, and we'll presumably revisit it at some other point. Jesse, thanks very much for the phone call. And professors, we appreciate your time today.

Prof. COLE: Thank you.

CONAN: It's been very kind of you to join us. Robert Turner, co-founder and associate director of the Center for National Security Law at the University of Virginia, David Cole, professor of law at Georgetown University Law Center, author of Terrorism and the Constitution, Sacrificing Civil Liberties in the Name of National Security. They both joined us here in studio 3A.

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