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It has now been a week since news broke that President Bush authorized domestic wiretaps with no judicial review, and since then the president has said that the Constitution and a congressional resolution both give him the authority to do that. The resolution he points to was passed a week after the 9/11 attacks. But in today's Washington Post, former Senate Majority Leader Tom Daschle writes that Congress never discussed such wiretaps while drawing up that use of force resolution. But, Daschle says, Congress did exclude the US from the war-making authority it granted the president. More from NPR's David Welna.
DAVID WELNA reporting:
When Congress passed the Foreign Intelligence Surveillance Act 27 years ago, it created a secret court to review the federal government's plans to carry out surveillance within US borders. Any spying done without a warrant from that court is a criminal offense, punishable by up to five years in jail; that is unless there's a statute that authorizes such warrantless spying. On Monday President Bush argued he's acted within that law.
President GEORGE W. BUSH: Do I have the legal authority to do this? And the answer is absolutely. As I mentioned in my remarks, legal authority is derived from the Constitution as well as the authorization of force by the United States Congress.
WELNA: That congressional authorization to use force against the perpetrators of the 9/11 attacks might be the statute the president needed to carry out warrantless searches, except that former Senator Tom Daschle, who was majority leader when that resolution passed, writes in today's Washington Post that during two days of consultation with the White House counsel's office prior to its passage, the issue of warrantless wiretaps never came up. Daschle was not available for further comment today, but he writes that he would never have authorized such wiretaps and he adds he's confident all the other senators who voted unanimously for that use of force resolution did not think they were authorizing the president to carry out warrantless domestic surveillance.
Daschle also notes he refused a last-minute White House request to change the resolution so it would include the United States in the scope of the president's war-making powers. At the time, administration officials seemed to recognize the resolution did not pertain to actions they might take in the US. Here's then Attorney General John Ashcroft speaking to the House Judiciary Committee six days after Congress approved the use of force resolution.
Mr. JOHN ASHCROFT (US Attorney General): We are asked to wage war against terrorism within our own borders. Today we seek to enlist your assistance, for we seek new laws against America's enemies, foreign and domestic.
WELNA: And the man who's now attorney general, Alberto Gonzales, told reporters this week that White House officials had, in fact, talked to top lawmakers about getting specific authority to carry out warrantless wiretaps.
Mr. ALBERTO GONZALES (US Attorney General): We consulted with leaders in the Congress about the feasibility of legislation to allow this type of surveillance. We were advised that it would be virtually impossible to obtain legislation of this type without compromising the program.
WELNA: Which prompted Arlen Specter, the Republican chair of the Senate Judiciary Committee, to ask why Gonzales even bothered consulting Congress.
Senator ARLEN SPECTER (Republican, Pennsylvania): If he didn't think he could get Congress to act, why does he think Congress intended to give those broad powers in the force resolution?
WELNA: Specter intends to hold what could be highly charged hearings next month on the warrantless wiretapping. David Welna, NPR News, the Capitol.
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