Tuesday, January 17, 2006

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.”

“It is a crime to engage in domestic surveillance without a warrant. It’s an express provision in a federal law,” Mr. Turley said. “The White House is … not disagreeing with that provision, they’re just saying that [Mr. Bush] trumps it with some inherent authority.”

But John C. Eastman, a law professor at Chapman University in California and director of the Claremont Institute Center for Constitutional Jurisprudence, said the covert program does not violate federal law.

“Even if Congress didn’t authorize wiretapping, and even if Congress specifically prohibited it, the fact that this is the exercising of the commander in chief’s executive power to thwart an attack on the United States makes it not just within the president’s constitutional authority, but … his constitutional responsibility,” he said.

Opponents of the president’s program argue that the 2001 congressional resolution does not grant the president power to conduct wiretapping within the United States, even if, as under Mr. Bush’s program, the calls are from overseas and include at least one person “with known links to al Qaeda and related terrorist organizations,” as he said last month.

“The president’s use of the war resolution borders on absurdity,” Mr. Turley said. “To have the attorney general putting forward an interpretation that he cannot possibly believe is true — because he’s not a moron — is deeply disturbing.”

But Abraham D. Sofaer, a senior fellow at the Hoover Institution, said, “It’s not at all moronic. If you are told you can fight a war, you certainly can collect intelligence to use force. … It’s a new battlefield.

“If he is following the attackers and reaches people in the U.S. through that route,” Mr. Sofaer said, “I think that collection of intelligence would be defensible. I think the president is doing the right thing and on solid ground.”

Mr. Hamilton argued that even if Mr. Bush does not have the authority under the congressional resolution, he “has clear authority under Article II to do this.”

“If he wasn’t doing this and we got hit, and then we found out that we had the ability to learn of the next attack and we didn’t do it, the president should be impeached,” he said.

The whole matter must now be sorted out by Congress and the courts, but Bruce Fein, a deputy attorney general under President Reagan, said Mr. Bush could easily bypass the debate.

“I think the public would be inclined, if the president made the case and went to Congress and said, ‘Here, I want you to ratify what I did retroactively, maybe I acted too hastily, and I want prospectively this authority to do that,’ I think Congress would approve it,” Mr. Fein said.

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