Censure Feingold?

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Unlike Sen. Russell Feingold, the Wisconsin Democrat seeking to censure President Bush for ordering the interception of communications in and out of the United States involving persons with suspected links to al Qaeda, Democratic President Franklin Roosevelt had no qualms about warrantless eavesdropping to protect the United States against attack.

Nor did Harry Truman.

There is a difference, however, between the eavesdropping Roosevelt and Truman authorized and the Bush eavesdropping. Roosevelt and Truman did it in peacetime without congressional authorization. Mr. Bush is doing it during a war Mr. Feingold voted Sept. 14, 2001, to authorize.

Nonetheless, Roosevelt and Truman acted within their constitutional authority to defend the nation against attack. They were doing their duty, as is President Bush.

But in the Senate on Monday, while introducing his censure resolution, Mr. Feingold said, "The president's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless."

Franklin Roosevelt could not have agreed. On May 21, 1940, the United States was at peace, but Roosevelt wasn't taking chances. "It is too late to do anything about it after sabotage, assassination and 'fifth column' activities are completed," Roosevelt wrote Attorney General Robert Jackson in a memorandum cited by Senate Intelligence Chairman Pat Roberts in a letter he sent last month to Senate Judiciary Chairman Arlen Specter. "You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens." (Emphasis added.)

Truman went further. Testifying before the Church Committee Oct. 29, 1975, Attorney General Edward Levi quoted a letter Attorney General Tom Clark sent Truman in 1946. Clark wanted to continue Roosevelt's program. Warrantless eavesdropping, he argued, was needed "in cases vitally affecting the domestic security, or where human life is in jeopardy."

In his letter to Mr. Specter, Mr. Roberts notes that "Truman broadened the scope of the authorization by removing the caveat that such surveillance should be limited 'insofar as possible to aliens.' "

Federal appeals courts have upheld the authority Roosevelt and Truman used. "[B]ecause of the president's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm... that the president may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence," the U.S. 5th Circuit Court of Appeals ruled in the 1973 case of United States v. Brown.

Even after President Carter signed the Foreign Intelligence Surveillance Act of 1978, which required warrants for domestic intelligence wiretaps, Mr. Carter's Justice Department went into federal court to defend warrantless wiretapping for national security reasons.

Truong Dinh Hung, a Vietnamese national living in the United States, and Ronald Humphrey, a U.S. citizen who worked for the U.S. Information Agency, had appealed their espionage convictions, which resulted from Humphrey passing classified documents to Truong, who sent them to Vietnamese officials in Paris in 1977.

"Truong's phone was tapped and his apartment was bugged from May 1977 to January 1978," explained the 4th Circuit's 1980 opinion in United States v. Truong. "The telephone interception continued for 268 days, and every conversation, with possibly one exception, was monitored and virtually all were taped. The eavesdropping device was operative for approximately 255 days, and it ran continuously. No court authorization was ever sought or obtained for the installation and maintenance of the telephone tap or the bug. The government thus ascertained that Humphrey was providing Truong with the copies of secret documents."

Lo and behold, Mr. Carter's Justice Department claimed Mr. Carter had a "constitutional prerogative" to conduct this warrantless wiretap. "In the area of foreign intelligence, the government contends, the president may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs," the court explained.

The judges agreed. "First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy," they said. "A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats and increase the chance of leaks regarding sensitive executive operations."

Does Mr. Bush have the same "constitutional prerogatives" in an authorized war that Mr. Carter had in peace? Mr. Feingold claims not, demanding censure of the president -- which ought to earn Mr. Feingold the censure of enlightened opinion.

Terence P. Jeffrey is a nationally syndicated columnist.