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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.
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