|LEGALITY OF DOMESTIC SPYING|
December 21, 2005
President Bush defended his administration's
use of the National Security Agency to monitor terrorist suspects, sparking a
debate over the legality of the president authorizing domestic spying without
court-approved warrants. Two legal experts discuss presidential power and congressional
GWEN IFILL: Now, new developments on President Bush's decision to authorize domestic spying on suspected terrorists without court approval. A sitting judge for the court charged with approving secret warrants has resigned, according to the Washington Post because he objected to the president's action. And according to the New York Times, the secret spying may have also intercepted some purely domestic communications.
The Bush administration has denied acting outside the law, Vice President Cheney told reporters yesterday the administration has only "restored the legitimate authority of the presidency." What does the law say?
For that, we're joined by: Bradford Berenson, he's a former associate White House counsel in the Bush White House, where he worked on anti-terrorism litigation and the USA Patriot Act; and, David Cole, he is professor of law at the Georgetown University Law Center, and an attorney for the Center for Constitutional Rights.
Bradford Berenson, your interpretation of the president's action -- was it legal?
BRADFORD BERENSON: Well, the administration has offered several defenses, legally speaking, for what it has done. First it claims, there is no violation of the Foreign Intelligence Surveillance Act, because another act of Congress, that authorizing the use of military force against al-Qaida, implicitly gave the president the power to collect intelligence against al-Qaida, regardless of what FISA may otherwise have imposed by way of limitation.
But even if that weren't true, what the president and vice president and the attorney general have said is the president has inherent authority given to him directly by the Constitution, under Article II of the Constitution, to take measures to defend the country that include gathering foreign intelligence, and that Congress couldn't, even if it wanted to, impair that authority or take it away or limit it or regulate it, and that this falls squarely within that authority -- gathering intelligence on who in the United States, al-Qaida agents may be speaking to, what they may be saying, is directly concerned with trying to prevent attacks here.
GWEN IFILL: David Cole, your esteemed legal point of view. I gather you don't agree with Mr. Berenson on this. What is the president's inherent legal authority?
DAVID COLE: Well, the president has -- sure, the president has authority to collect signals intelligence on the enemy, on the battlefield abroad. But the notion that the president somehow by virtue of having been authorized to use military force against al-Qaida has the power to engage in unchecked wiretapping of American citizens at home indefinitely forever is, I think, ludicrous.
And, in fact, Congress addressed this exact issue. In the Foreign Intelligence Surveillance Act they addressed what power should the president have to engage in warrant-less wiretapping during wartime; and they have as a provision, Section 1811, that says the president has the power to conduct warrant-less wiretapping for only the first 15 days after war commences. And then they said anything beyond that is a crime.
And the president, rather than seeking to change that, rather than going to Congress and saying, "I need broader authority," simply violated a criminal statute and went out and secretly, without congressional approval and without any judicial approval, went out and violated the law.
GWEN IFILL: Let's go back, Mr. Berenson, to precedent. Is there any precedent for what the president did here?
BRADFORD BERENSON: Absolutely. There's some very recent precedent. One of the things the administration relies on is Supreme Court's decision just last year in 2004 in the Hamdi case in which the Supreme Court said that the authorization to use military force against al-Qaida carried with it implicitly the power on the part of the president to detain U.S. citizens pursuant to his authority as commander in chief outside the criminal process.
The congressional resolution doesn't specifically address that either, but the notion is that when Congress gives the president the authority to wage war, which he also possesses inherently under the Constitution, that authorization carries with it the power to do all of the things that are incident to war ordinarily. And certainly, gathering intelligence against your enemies is one of those things.
GWEN IFILL: Is that Hamdi precedent the one that applies?
DAVID COLE: No, it's obviously a very different thing to say that the authorization to use military force allows you to capture someone on the battlefield in Afghanistan. Sure, that's an incident part of the military authorization.
But to say that it's an incidental part of the military authorization to start spying on innocent Americans at home without going to a court, and specifically where Congress has said you have no authority, it is a crime to engage in spying on Americans at home, unless you do so pursuant to our specific rules, and we've set out a rule that says only for the first 15 days can you conduct a warrant-less tap, and after that, you have to go through a court.
And you know, President Bush's argument that he can do it because it is necessary for the war effort reminds me of President Truman's argument during the Korean War that he could seize the steel mills because it was necessary to keep the war going. The Supreme Court said no, you're commander in chief of the Army and Navy; you're not commander in chief of the country and its inhabitants. And President Bush seems to think he's commander in chief of the country and its inhabitants.
GWEN IFILL: Why doesn't the Truman example apply?
BRADFORD BERENSON: Well, the Truman example does not exclude the possibility that statutes of Congress can be unconstitutional infringements on the president's core war powers under the Constitution.
The gathering of intelligence against an active enemy in the midst of war is far closer to the center of the president's commander in chief powers than the seizure of steel mills to avert a strike, which is what was going on with President Truman during World War II.
Congress's effort to limit the president to warrant-less wiretapping of 15 days after the commencement of hostilities, undoubtedly, in the eyes of the administration is unconstitutional, in the same way that they and every other president since 1973 have contended that the war powers resolution, which purports to limit the amount of time the president can deploy troops overseas into hostilities without congressional authorization is unconstitutional.
|Reports of purely domestic spying|
GWEN IFILL: Part of the president's defense this week has been that these were -- they were monitoring only suspected al-Qaida terrorists, and that the conversations began here and ended, or began abroad and ended here, but no internally domestic calls were involved.
The stories in the paper today suggest otherwise. Would that change your interpretation?
BRADFORD BERENSON: Well, what the story in the New York Times today suggested is that there may have been instances where accidentally domestic calls were intercepted because there was a foreign cell phone being used on our soil by a suspected al-Qaida agent.
But the president's order, according to the Times story, specifically requires that one party to the conversation be a suspected al-Qaida agent abroad, outside the borders of the United States. But if this were purely domestic surveillance, I do think there would be a legal difference.
GWEN IFILL: What about, Mr. Cole, this idea of presidential authority, even Griffin Bell, the attorney general under Jimmy Carter, said that the FISA court was not created to preempt - or I think the word he used -- to displace presidential authority. And, obviously, Vice President Cheney was making that point as well. What about that?
DAVID COLE: Well, this is clearly an area where Congress and the president have concurrent authority. They both have authority, just as they do with respect to many aspects of the war.
Congress, after all, has the power to raise and support the army. It has the power to create rules and regulations for the army. It certainly has the power to control the - to regulate to protect the privacy rights of innocent Americans from at home from warrant-less wiretaps by the president.
And so, yes, there's a commander-in-chief authority, but it's subject to legitimate regulations that are passed by Congress, and Congress passed a regulation here that was directly on point. And instead of the president either saying to Congress we think you ought to give us broader authority, or saying to the American people, even though Congress has said it's a crime for me to do this, I'm going to do it because it's in my landfall authority, no, what he did was he snuck around behind Congress, never presented it to Congress, never asked for broader authority --
GWEN IFILL: He says that there were members of Congress who were briefed.
DAVID COLE: In classified briefings, where they weren't allowed to go outside of that classified briefing and tell other people what was said. So it wasn't -- he didn't go to Congress the way he was supposed to go.
In a democracy, the president is not permitted to just ignore law that's on the books and in secret go around that law and then only when it's leaked come out and say, well, it was legal.
GWEN IFILL: What should Congress' role have been in that?
BRADFORD BERENSON: I should point out, before addressing that question, that there's a recent court decision from the federal court of appeals, the FISA court of review in 2002, which acknowledges that there's unbroken legal authority, that the president has inherent power under Article II to gather intelligence, and Congress cannot, through FISA or otherwise, displace that power or limit it, just the way Griffin Bell suggested.
GWEN IFILL: So what is Congress' role?
BRADFORD BERENSON: Well, Congress was briefed; the leaders of the intelligence committees were briefed more than a dozen times by the administration on this, so that they were kept informed, as they were supposed to be. And they can have a dialogue with the president about this. They ultimately have the power of the purse, and if they wanted to prevent, this they could attempt to de-fund it --
GWEN IFILL: But if it's classified information, and you're forbidden from sharing it, from taking notes, from bringing staff members into the classified briefing, what is a senator supposed to do with that information?
BRADFORD BERENSON: Well, it's very difficult because Congress is, as we know, a very, very leaky place. That's been a problem since really the beginning of the Republicans.
So when vital national security interests are at stake, the executive branch and the Congress have to deal carefully with them. And they do that through the intelligence committees - those are the appropriate - that's the appropriate center for oversight in this area, and near as I can tell, according to what the administration has said, they did right by those committees, and briefed the leadership of both parties in both Houses.
GWEN IFILL: Has there been appropriate oversight, and can that even change, David Cole?
DAVID COLE: Absolutely not. The first thing you need for appropriate oversight is honesty and candor from our president, and when our president goes around behind the law, faces a criminal prohibition and says I'm just going to ignore it, doesn't ask for broader authority, doesn't say to the American people, I don't need broader authority because I have this authority, doesn't make it a matter of democratic deliberation, but simply assumes the power, then I think you can't possibly have oversight.
And you have no judicial oversight because he's asserted a power to tap peoples' phones without going to a court and ever asking permission.
GWEN IFILL: David Cole, Bradford Berenson, thank you both very much.