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A President with Unlimited Power •
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'78 Law Sought to Close Spy Loophole
By David G. Savage
The Los Angeles Times
Saturday 17 December 2005
Civil libertarians say the latest revelations add to their frustration with the Bush administration. "If we are a nation of laws, then the president must be bound by the rule of law," said Lisa Graves, senior counsel at the ACLU in Washington. "This is clearly in violation of FISA and a violation of the Constitution. The president, no matter who he is, does not have the power to decide which laws he will follow."
Washington - In 1978, Congress thought it had closed a loophole in the law when it passed the Foreign Intelligence Surveillance Act. The loophole concerned secret spying authorized by the president on grounds of national security.
On Friday, many in Washington were surprised to learn that despite the 1978 law, President Bush and his advisors had claimed the power to authorize secret spying within the United States.
The New York Times reported that Bush had authorized the National Security Agency to listen in on the phone calls of thousands of people in this country without getting permission from a court. Bush's lawyers maintained that the president had the inherent authority as commander in chief to protect national security through secret spying. The account was confirmed by the Los Angeles Times.
"This sounds like an extraordinarily broad exemption to FISA," said Washington lawyer Kenneth C. Bass III, who worked on the 1978 law as an aide to President Carter. "This is well beyond the pale of what was anticipated back then."
Other lawyers who helped write the law thought it prohibited what Bush apparently authorized.
"FISA was the sole authority for wiretapping" on national security grounds, said Jerry Berman, who worked on the 1978 law as a counsel to the American Civil Liberties Union. "The statute would be a futile exercise if the president retained the authority to conduct these wiretaps on his own."
As a general matter, the Constitution forbids the government from spying on Americans - including by listening in on their phone calls - without a court's permission. The 4th Amendment says police or federal agents must show a magistrate some evidence of wrongdoing before they can obtain a warrant that authorizes them to listen in on phone calls.
However, through most of the 20th century, presidents maintained they had the power to protect the nation's security by, for example, spying on foreign agents who were operating in the United States. No one questioned that US intelligence agencies could tap the phones of Soviet agents.
In the mid-1970s, Congress learned the White House had abused this power: Presidents, both Democratic and Republican, had authorized the FBI to tap the phones of hundreds of political activists and celebrities, including Martin Luther King Jr. and Vietnam War protesters.
Those revelations led to the 1978 law. One provision says it is a crime for anyone to "intentionally engage in electronic surveillance" except as authorized by law or a court order. However, "the president, through the attorney general, may authorize electronic surveillance ... to acquire foreign intelligence information" if officials obtain a warrant from a special court that operates inside the Justice Department.
The judges of what is known as the FISA court may issue warrants for wiretaps when the government has evidence that a person is working for a "foreign power" or is involved in terrorism. This is not a high standard, legal experts say. The judges issue warrants virtually whenever the government applies for one, the Justice Department has said in the past.
However, the law requires evidence that the wiretap target has links to a foreign government or a terrorist group. It would not permit, for example, the wiretaps of hundreds of Muslim men in the United States simply because they telephoned the Middle East.
Top intelligence officials have in the past assured Congress that they follow the law and do not engage in secret spying. "There is a rigorous regime of checks and balances which we - the CIA, the NSA and the FBI - scrupulously adhere to whenever conversations of US persons are involved. We do not collect [information] against US persons unless they are agents of a foreign power," then-CIA Director George J. Tenet told a House committee five years ago.
After Sept. 11, Bush said he would use all the powers of the presidency to prevent another terrorist attack in the United States. His advisors feared then that secret Al Qaeda cells existed within the country and that further attacks were planned.
Administration officials refused Friday to discuss the National Security Agency spying program or even to confirm its existence.
Some former officials say it is important to put the program into the context of the time.
"I wasn't aware of this when I was at the White House, but there was a tremendous sense of urgency to take whatever steps were necessary to detect and disrupt any cells that were out there," said Bradford A. Berenson, a White House lawyer during Bush's first term. "The president was not going to let it be said that he had not used all the powers at his disposal to protect the American people."
This would not be the first time Bush has claimed that his power as commander in chief can override the law.
The Constitution forbids the government from arresting and holding people in the United States without "due process of law." Nonetheless, Bush has claimed the power as commander in chief to designate people as "enemy combatants" and imprison them indefinitely without filing charges.
In 2002, US citizen Jose Padilla was arrested at Chicago's O'Hare International Airport and held in military brigs for nearly three years. Civil libertarians said that was unconstitutional. His case had been heading toward the Supreme Court; the administration recently brought criminal charges against him, thereby thwarting a clear ruling on the issue.
In the past, Congress has ratified treaties pledging that the United States and its agents will not use torture or inhumane treatment against captives. Once ratified, treaties become part of American law, according to the Constitution.
But before this week, the White House maintained that the laws and treaties did not bind the president in handling terrorist leaders. White House lawyers wrote memos that appeared to justify the use of extreme measures - which critics called torture - in interrogating suspected terrorists.
Civil libertarians say the latest revelations add to their frustration with the Bush administration. "If we are a nation of laws, then the president must be bound by the rule of law," said Lisa Graves, senior counsel at the ACLU in Washington. "This is clearly in violation of FISA and a violation of the Constitution. The president, no matter who he is, does not have the power to decide which laws he will follow.
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Behind Power, One Principle as Bush Pushes Prerogatives
By Scott Shane
The New York Times
Saturday 17 December 2005
Washington - A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.
From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts.
With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said.
The administration's legal experts, including David S. Addington, the vice president's former counsel and now his chief of staff, and John C. Yoo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority.
The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of the powers.
Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks.
Mr. Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."
That became the underlying justification for numerous actions apart from the eavesdropping program, disclosed by The New York Times on Thursday night. Those include the order to try accused terrorists before military tribunals; the detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret overseas jails operated by the Central Intelligence Agency; the holding of two Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use of severe interrogation techniques, including some banned by international agreements, on Al Qaeda figures.
Mr. Yoo, now a law professor at the University of California, Berkeley, declined to comment for this article. But Bradford A. Berenson, who served as associate counsel to President Bush from 2001 to 2003, explained the logic behind the assertion of executive power.
"After 9/11 the president felt it was incumbent on him to use every ounce of authority available to him to protect the American people," Mr. Berenson said.
He said he was not familiar with the NSA program, in which the intelligence agency, without warrants, has monitored international telephone calls and international e-mail messages of people inside the United States. He said that he could not comment on whether the program was justified, but that he believed intelligence gathering on an enemy was clearly part of the president's constitutional war powers.
"Any program like this would have been very carefully analyzed by administration lawyers," Mr. Berenson said. "It's easy, now that four years have passed without another attack, to forget the sense of urgency that pervaded the country when the ruins of the World Trade Center were still smoking."
But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the NSA domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.
"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both NSA and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme."
Even if the administration believes the president has the authority to direct warrantless eavesdropping, she said, ordering it without seeking Congressional approval was politically wrongheaded. "We're just relearning the lessons of Vietnam and Watergate," said Ms. Parker, now dean of the University of the Pacific McGeorge School of Law.
Jeffrey H. Smith, who served as CIA general counsel in 1995 and 1996, said he was dismayed by the NSA program, which he said was the latest instance of legal overreach by the administration.
"Clearly the president felt after 9/11 that he needed more powers than his predecessors had exercised," Mr. Smith said. "He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values."
William C. Banks, a widely respected authority on national security law at Syracuse University, said the NSA revelation came as a shock, even given the administration's past assertions of presidential powers.
"I was frankly astonished by the story," he said. "My head is spinning."
Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said.
Mr. Berenson, the former White House associate counsel, said that in rare cases, the presidents' advisers may decide that an existing law violates the Constitution "by invading the president's executive powers as commander in chief."
The Foreign Intelligence Surveillance Act of 1978 typically requires warrants for the kind of eavesdropping carried out under the special NSA program. Whether administration lawyers argued that that statute unconstitutionally infringed the president's powers is not known.
But Mr. Smith, formerly of the CIA, noted that when President Carter signed the act into law in 1978, he seemed to rule out any domestic eavesdropping without court approval.
"The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States" if an American's communications might be intercepted, President Carter said when he signed the act.
By asserting excessive powers, Mr. Smith said, President Bush may provoke a reaction from Congress and the courts that ultimately thwarts executive power.
"The president may wind up eroding the very powers he was seeking to exert," Mr. Smith said.
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