Nickdfresh
02-06-2006, 03:03 PM
Hearings today on Bush wiretapping
Senate: The dispute is over the scope of the president's authority to act in the interest of national security
By David G. Savage
Los Angeles Times
Salt Lake Tribune (http://www.sltrib.com/nationworld/ci_3480334)
WASHINGTON - Ever since President Truman sent U.S. troops to fight in Korea in 1950, presidents have claimed broad wartime power to act without first seeking the approval of Congress. But they did so with the silence or implicit consent of lawmakers.
Senators convene today to confront the fact that, in combating terrorism, President Bush has gone a step further. In the controversies over the use of torture, the detention of ''enemy combatants'' and now wiretapping within the United States, he and his lawyers have maintained that the commander in chief has an ''inherent authority'' to act regardless of the law.
That issue is the heart of the dispute between the White House and Congress over Bush's order authorizing the National Security Agency to listen in on international phone calls coming from individuals suspected of being terrorists or of having ties to them.
''If there are people inside our country who are talking with al-Qaida, we want to know about it,'' the president said Tuesday in his State of the Union address.
While virtually no one quarrels with the president's goal of trying to detect terrorists who may be hiding in this country, many legal experts - and even some Republicans in Congress - doubt he has the power on his own to order wiretapping in the United States without a judicial warrant as the law requires.
This week's hearings were triggered by the recent disclosure of the NSA's secret domestic wiretapping program.
Previously, the legal parameters for wiretapping had been spelled out by Congress and by the Supreme Court. The government could conduct ''electronic surveillance'' in this country so long as it first obtained a warrant from a judge. Outside U.S. borders, there were no such limits on the NSA and its spying.
These rules had been set in the 1960s and 1970s, partly in response to reports that the FBI's J. Edgar Hoover and the Central Intelligence Agency had secretly spied on political dissidents, activists and celebrities.
In 1967, the Supreme Court ruled that wiretapping a phone was like invading a home. Applying the Fourth Amendment and its ban on unreasonable searches, the court said police and federal agents would have to show a magistrate they had ''probable cause'' to suspect criminal wrongdoing before they could tap a phone.
That case dealt with a criminal case, and presidents and their lawyers continued to argue that, in matters of national security, the White House could order wiretapping without a warrant.
The Supreme Court unanimously rejected that view in 1972. A warrant from a ''neutral and disinterested magistrate'' must be obtained before a phone is tapped, the justices said again. ''These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely with the discretion of the executive branch,'' they said.
But the court noted it was not ruling on ''the activities of foreign powers or their agents'' who might be operating in the United States. ''Congress may wish to consider protective standards'' to permit but regulate electronic surveillance of foreign agents, the justices said.
In response, Congress passed and President Carter signed the Foreign Intelligence Surveillance Act of 1978. It permitted the president and the attorney general to conduct ''electronic surveillance'' in the United States to spy on foreign spies or to track international terrorists so long as they obtained a warrant from a judge on a special FISA court established for that purpose.
The law described this procedure as the ''exclusive means'' for authorizing such wiretaps and made it a crime to eavesdrop without a warrant.
The Senate Judiciary Committee said the measure ''puts to rest the notion that Congress recognizes an inherent presidential power to conduct such surveillance.''
Senate: The dispute is over the scope of the president's authority to act in the interest of national security
By David G. Savage
Los Angeles Times
Salt Lake Tribune (http://www.sltrib.com/nationworld/ci_3480334)
WASHINGTON - Ever since President Truman sent U.S. troops to fight in Korea in 1950, presidents have claimed broad wartime power to act without first seeking the approval of Congress. But they did so with the silence or implicit consent of lawmakers.
Senators convene today to confront the fact that, in combating terrorism, President Bush has gone a step further. In the controversies over the use of torture, the detention of ''enemy combatants'' and now wiretapping within the United States, he and his lawyers have maintained that the commander in chief has an ''inherent authority'' to act regardless of the law.
That issue is the heart of the dispute between the White House and Congress over Bush's order authorizing the National Security Agency to listen in on international phone calls coming from individuals suspected of being terrorists or of having ties to them.
''If there are people inside our country who are talking with al-Qaida, we want to know about it,'' the president said Tuesday in his State of the Union address.
While virtually no one quarrels with the president's goal of trying to detect terrorists who may be hiding in this country, many legal experts - and even some Republicans in Congress - doubt he has the power on his own to order wiretapping in the United States without a judicial warrant as the law requires.
This week's hearings were triggered by the recent disclosure of the NSA's secret domestic wiretapping program.
Previously, the legal parameters for wiretapping had been spelled out by Congress and by the Supreme Court. The government could conduct ''electronic surveillance'' in this country so long as it first obtained a warrant from a judge. Outside U.S. borders, there were no such limits on the NSA and its spying.
These rules had been set in the 1960s and 1970s, partly in response to reports that the FBI's J. Edgar Hoover and the Central Intelligence Agency had secretly spied on political dissidents, activists and celebrities.
In 1967, the Supreme Court ruled that wiretapping a phone was like invading a home. Applying the Fourth Amendment and its ban on unreasonable searches, the court said police and federal agents would have to show a magistrate they had ''probable cause'' to suspect criminal wrongdoing before they could tap a phone.
That case dealt with a criminal case, and presidents and their lawyers continued to argue that, in matters of national security, the White House could order wiretapping without a warrant.
The Supreme Court unanimously rejected that view in 1972. A warrant from a ''neutral and disinterested magistrate'' must be obtained before a phone is tapped, the justices said again. ''These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely with the discretion of the executive branch,'' they said.
But the court noted it was not ruling on ''the activities of foreign powers or their agents'' who might be operating in the United States. ''Congress may wish to consider protective standards'' to permit but regulate electronic surveillance of foreign agents, the justices said.
In response, Congress passed and President Carter signed the Foreign Intelligence Surveillance Act of 1978. It permitted the president and the attorney general to conduct ''electronic surveillance'' in the United States to spy on foreign spies or to track international terrorists so long as they obtained a warrant from a judge on a special FISA court established for that purpose.
The law described this procedure as the ''exclusive means'' for authorizing such wiretaps and made it a crime to eavesdrop without a warrant.
The Senate Judiciary Committee said the measure ''puts to rest the notion that Congress recognizes an inherent presidential power to conduct such surveillance.''