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Did the President Violate the Law?

President Bush assured Americans he had the constitutional authority to secretly set up the NSA program that involved wiretapping people in the U.S., without court surveillance. But many authorities disagree. Here's a sample of the debate, drawn from FRONTLINE's interviews for this report.

  • Related Link
  • In Their Own Words
    How Bush administration officials have described the president's program.

Peter Swire
Chief counsel for privacy, Executive Office of the President at the Office of Management and Budget (1999-2001)

As a lawyer, as somebody who specialized in information technology and the law for a quarter of a century, what's your bottom-line take on [the NSA program]? …

I was outraged. I tend to be fairly level in the way I approach things, and I had a sense of outrage that they would just disregard the law. The law said the exclusive authority for wiretaps were these other statutes, and the president looked at exclusive authority and said, "Except when I feel like it." It was as though the lessons of Watergate had been forgotten. It was as though the lessons of centralized executive power and the problems that come with that had been forgotten. And now the president just said, "I think I can do it my way."

So you're saying the president violated the law?

My view is that the president violated the law, yes.

Which law?

The FISA law. The Foreign Intelligence Surveillance [Act] law says the exclusive authority for wiretaps is going to be either the FBI wiretaps for crime, or it's going to be this foreign intelligence wiretap when the judges look at it. Those are your choices. This was number three. It didn't fit.

John Yoo
Deputy assistant attorney general, Office of Legal Counsel, Justice Department (2001-2003)

What do you say to people that say the president violated the FISA law?

I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him. ...


Michael Woods
Attorney, national security division, FBI (1999-2002)

What the FISA law says is no matter who you are in the government, ... if you are going to intercept something inside the United States, this is the framework for doing it. So if you could theoretically -- and I need to be very careful here; I'm not saying this is what is actually occurring here -- but if you were to intercept a foreign-to-foreign communication and the point at which you grabbed that communication was physically inside the United States, that would be a matter for FISA.

So you'd have to get a FISA warrant.

Right. I would say that is true. But I would need to note that there are people who would say that FISA did not ... completely extinguish the president's inherent authority to authorize things, even domestically. Personally I don't think that's the case. ...


Suzanne Spaulding
Assistant general counsel, CIA (1989-1995); deputy staff director, Senate Intelligence Committee (1995-1997)

I do think there is a reasonable argument to be made that despite the fact that Congress has constructed this careful statutory framework in the Foreign Intelligence Surveillance Act, that there may be some residual authority for the president in unforeseen emergency circumstances, ... where time is of the essence and where the president feels that he or she must act quickly to protect the nation. I think it is not unreasonable to argue that in that context, the president may have some residual authority to authorize a warrantless electronic surveillance. But again, I think that needs to be then subject to later judicial review to determine whether the president made the right analysis in conducting that Fourth Amendment balancing. ...

We went five years from the attacks of 9/11 before the disclosure of these warrantless wiretaps. Even if you argue that the president might do something in urgent emergency situations right after 9/11, can he still be doing it five years later, or is the president violating the law?

I don't think that he can still be doing it five years later and pass constitutional muster. … I think a court would decide that the compelling need ... dissipates over time. When there is time now to go to Congress to get the statute amended, and five years later, I would be surprised if a court would still uphold that compelling-need side of the equation. ...

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posted may. 15, 2007

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