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Gonzalez: U.S. Surveillance Legal


President Bush today offered a variety of legal justifications for his executive order allowing American citizens to be spied on by the National Security Agency without any review by the courts. NPR legal affairs correspondent Nina Totenberg reports.


The bipartisan uproar that's greeted the disclosure about the electronic surveillance program stems from the fact that Congress in 1979 enacted a federal law specifically aimed at dealing with such national security problems. It's called the Foreign Intelligence Surveillance Act, or FISA. It established a special secret court to approve national security warrants, and in the years since that court has approved 19,000 of them and rejected just five. Today at his press conference, the president maintained he has inherent constitutional power to trump that law if necessary.

President GEORGE W. BUSH: Do I have the legal authority to do this? And the answer is absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution as well as the authorization of force by the United States Congress.

TOTENBERG: In a briefing with reporters, Attorney General Alberto Gonzales said the administration takes the position that Congress authorized the warrantless surveillance program when it authorized the use of force in the aftermath of the 9/11 attacks. The president refused to say how many Americans have been targeted for warrantless surveillance in the four years since the program began; news reports have said hundreds or possibly even thousands. The president, however, said that his order for warrantless surveillances is nimbler than FISA.

Pres. BUSH: It enables us to move faster and quicker, and that's important. We've got to be fast on our feet.

TOTENBERG: The president's critics, however, countered that FISA does allow the government to conduct electronic surveillances without a warrant in emergencies, as long as the warrant is sought in the following three days. And the law allows warrantless intercepts for 15 days after an attack. Philip Heymann served in high-ranking Justice Department jobs in the Carter administration, when FISA was passed, and in the Clinton administration. He says that the law was enacted with terrorism very much in mind.

Mr. PHILIP HEYMANN (Former Justice Department Official): If the powers they gave to deal with emergencies weren't adequate, the president's obligation is to go to the Congress and ask for the amendment that he needs, not to simply ignore the law, claiming that he's the president and therefore he can do it. It's just an absolute arrogance of power.

TOTENBERG: Nor did the president get much support for his position today from conservative legal scholars or even former Bush administration personnel. Said one former Bush White House official, `I'm still trying to figure out what their position is.'

Bruce Fein served as deputy associate attorney general in the Reagan administration.

Mr. BRUCE FEIN (Former Deputy Associate Attorney General): I was someone who defended strong presidential powers, and we do need a strong presidency. But we don't want a presidency that elevates itself into kingship even stronger than that of George III. And I have opined that if the president does not renounce this rather preposterous claim of inherent authority to run roughshod over every provision of the Constitution under the banner of fighting a war, Congress needs to consider an express statute reining him in or even impeaching him.

TOTENBERG: A tepid defense did come from some conservatives, like Pepperdine Law School's Doug Kmiec.

Professor DOUGLAS KMIEC (Pepperdine University): I think it's obviously very aggressive, very assertive lawyering on behalf of the president. It makes some plausible sense very close to the 9/11 attack and certainly within the arc of the attack itself. But the farther one gets from the attack, the lesser the justification.

TOTENBERG: Bottom line? If the president thought his press conference would dampen the legal controversy, it doesn't seem to have worked. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.