Legal scholars split on wiretaps

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Washington has been in a furor over the National Security Agency's wiretapping, particularly President Bush's assertion that he has the executive authority to order the program, but scholars disagree over whether he is on solid legal ground.

The president claims authority for the covert program by citing Article II of the Constitution, which states, "The executive power shall be vested in a president of the United States of America," who alone "shall be commander in chief of the Army and Navy of the United States."

Mr. Bush also cites a 2001 congressional resolution, which gave the president the authority to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided" the September 11 attacks.

These arguments will be tested in court, because of yesterday's lawsuits from the American Civil Liberties Union and other groups seeking to block the National Security Agency program.

Opponents -- including many Democrats, some Republicans and several constitutional scholars -- decry the administration's move as an abuse of executive power and argue that the covert program is illegal.

They say that the "checks and balances" framework of the Constitution requires the president to seek and win congressional approval before conducting such an operation.

"This is one of the most serious constitutional crises that we've ever faced in the country," said Jonathan Turley, a George Washington University law professor.

Mr. Turley said the president's claim of executive authority based on Article II "would put our system on a slippery slope."

"There's no limiting principle to that theory. The president inevitably ends up a maximum leader in a system of limited powers," he said.

Since the program was revealed a month ago, critics have cited a 1978 law that requires a president to obtain warrants for domestic spying in wartime, noting especially that the law says it is "the exclusive means by which electronic surveillance ... may be conducted."