Legality of wiretaps
questioned
Boston Globe
By Susan Milligan
December 19, 2005
WASHINGTON -- Lawmakers from both parties yesterday questioned the legality
of the Bush administration's secret wiretapping -- done without court approval
-- of US citizens and foreign nationals, even as the White House continued to
defend the intercepts as critical to stopping potential terrorist attacks.
Three prominent Republican senators -- Arlen Specter, John McCain, and
Lindsey Graham -- appeared on Sunday talk shows and called for investigations
into the matter, intensifying public pressure on the Bush administration, which
has stuck by its decision to allow domestic spying.
The senators said the wiretapping might violate the 1978 Foreign
Intelligence Surveillance Act, which requires special federal court approval of
any surveillance of US citizens conducted for intelligence purposes on American
soil.
"We cannot set aside the rule of law in a time of war, because that's what
we're fighting for in Iraq, for them to follow the law, not an outcome,"
Graham, of South Carolina, said yesterday on CBS's "Face the Nation." Graham, a
lawyer, said he did not know of any legal basis the president might have to
order wiretaps without first getting a warrant from a special court set up to
review such requests.
"What statute would give the authority of the president to collaborate with
a handful of congressmen and senators not to get a warrant? What executive
order or constitutional provision would give the authority of the president to
avoid the warrant requirement?" Graham asked. "There may be some. I just don't
know of it. But if there is not any, that's a problem," he said.
Senate minority leader Harry Reid, Democrat of Nevada, called for both
chambers of Congress to conduct an investigation of the matter; Specter, a
Pennsylvanian who chairs the Judiciary Committee, has said he intends to hold
hearings on it.
"There are limits as to what the president can do under the constitution,
especially in a context where you have the Foreign Intelligence Surveillance
Act, which makes it unlawful to have spies or surveillance or interceptions on
citizens in the United States unless there is a court order," Specter said on
CNN's "Late Edition"
McCain, of Arizona, said, "I take him [Bush] at his word" that the order was
critical to saving lives. "The president, I think, has the right to do this,
and yet, I don't know why he didn't go" obtain court approvals, McCain told
ABC's "This Week." McCain said he would welcome hearings on the matter, but
noted, "I know that the leaders of Congress were consulted, and that's a very
important part of this equation."
President Bush acknowledged on Saturday that he had authorized wiretaps of
calls made by people living in the United States to people outside the country,
confirming a New York Times report that administration officials had initially
refused to discuss.
In an unusual live radio address, the president said that in the weeks
following the Sept. 11, 2001, attacks, he authorized the National Security
Agency to intercept calls made by people "with known links to Al Qaeda and
related terrorist organizations." He said the activity was "consistent with US
law and the Constitution."
Secretary of State Condoleezza Rice defended the action on NBC's "Meet the
Press" yesterday, calling it "a very limited program" meant to identify
possible terrorist plots.
"The more we get the exposure of these very sensitive programs, the more it
undermines our ability to follow terrorists, to know about their activities,"
Rice added in another appearance on Fox News. Bush used the authority so
"people could not communicate inside the United States about terrorist activity
with people outside the United States, leaving us vulnerable to terrorist
attack," she said.
Rice repeatedly referred to the Sept. 11 attacks as justification for the
activity, the same reason cited by the administration when it has been under
criticism regarding the war in Iraq and Guantanamo Bay prisoners. But lawmakers
on Capitol Hill remained appalled.
"It is outrageous that the president wouldn't go to court before spying on
American citizens. The Justice Department and this president have shown they
can't be trusted to respect the boundaries of the law," Representative Martin
T. Meehan, Democrat of Lowell, said in an interview. "I don't think we can
trust this president when he says he has to spy on Americans to keep us safe,
particularly after misleading the American people and the Congress into war,"
said Meehan, who serves on the House Armed Services Committee.
Other Democrats said the secret intercepts reflected a pattern of abuse of
power by the White House. "The president has, I think, made up a law that we
never passed," Senator Russ Feingold, Democrat of Wisconsin, said yesterday on
CNN's "Late Edition."
Rice said Bush notified members of Congress before authorizing the
intercepts. Reid and House minority leader Nancy Pelosi, Democrat of
California, said they were informed of the decision, but Pelosi said they were
unable to challenge it or discuss it publicly because of security concerns.
"Congress has not been involved in setting up this program. This is totally a
program of the president and the vice president of the United States," Reid
said on Fox.
© Copyright 2005 Globe Newspaper Company.
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