Power to eavesdrop open to interpretation



WASHINGTON -- President Bush is exerting an unprecedented, but perhaps legally defensible, use of executive power in authorizing domestic spying without a court-approved warrant, several national security analysts said yesterday.

Yet, given recent trends in which the White House has been forced, politically, to soften its hard line on fighting terrorism, some national security lawyers predicted that Bush might ultimately find it necessary to pare back that authority.

"It's not out of the question," said Suzanne Spaulding, a former assistant counsel at the CIA who has worked as a national security adviser for both Democrats and Republicans on Capitol Hill. "There is an argument that can be made, and has been made, that the president does have some authority in this area."

The question, she said, is how much.

Because precedents in this area of national security law are few, it is a corner of the legal universe that has always been murky and open to interpretation, especially in the realm of domestic surveillance.

"The issue of domestic intelligence is one of the hardest that we have to deal with in national security," said Timothy Sample, president of the Intelligence and National Security Alliance, who was previously the top Republican aide for the House Intelligence Committee.

Sample cautioned against a "rush to judgment" before the reasons behind the decision to approve NSA eavesdropping without warrants and the "effectiveness" of the measures were understood.

According to a New York Times report yesterday, Bush signed an executive order in 2002 authorizing the National Security Agency to track some international phone calls and e-mails sent to or from the United States without first obtaining a warrant.

This interpretation of the president's constitutional powers to defend the country far exceeds what executive branch lawyers had in mind in 1978 when they negotiated the terms of the Foreign Intelligence Surveillance Act, said Kenneth Bass, who was President Jimmy Carter's intelligence counsel when the law was passed.

That law, known as FISA, defined the government's spying authority and created an expedited means for the federal government to obtain warrants through a secret court to eavesdrop on conversations.

"It's fundamentally inconsistent with the executive branch view of [presidential power] at the time FISA was enacted," Bass said.

The thinking in the White House at the time, Bass said, was that there might be a very limited number of circumstances in which the president would need to authorize government officials to search or eavesdrop without a warrant. But those situations would be evaluated on a case-by-case basis, and the president would use that power only in extraordinary circumstances.

That interpretation was an informal understanding rather than a formal legal opinion, Bass said. It leaves open the possibility that subsequent presidents might interpret that power outside of the surveillance law more broadly, some national security lawyers said.

A Bush administration memo made public more than a year ago set out much of the administration's thinking about the president's war powers-and that he need not heed congressional orders in a time of war.

When a 2002 Justice Department legal opinion on interrogation became public last year, the White House disavowed the broad interpretation of allowable detainee treatment. What was less noticed, and not widely contested, was the nine-page section in that document that interpreted the president's wartime powers very expansively, including a finding that Congress may not stand in the way of the president's wartime powers.

"Congress lacks authority ... to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war," the department opinion stated.

Spaulding said she understood that the White House is relying, in its legal justification for the president's executive order, largely on the footnote of a 1972 Supreme Court decision known as the "Keith Case."

That case found that the government could not eavesdrop on domestic groups that posed a threat to security, but in a footnote, the court said it might decide differently in the case of an international group.

The law that became known as FISA was initiated in the Ford administration and finalized under President Carter.

When Ford's staff drafted the initial FISA law, the plan was to set the question of the president's war powers authority aside and agree to be bound by this new law, Spaulding said.

FISA does include a provision that allows the executive branch in the first 15 days of a war to conduct searches without a warrant, but otherwise, U.S. law states that the secret courts are the exclusive means for the government to obtain permission to eavesdrop.

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