Analysis: Bush Ties Surveillance to 9/11 Law
"Attorney General Alberto Gonzales said Monday the administration believes Congress gave Bush the authority to use 'signals intelligence' — wiretaps, for example — to eavesdrop on international calls between U.S. citizens and foreigners when one of them is a suspected al-Qaida member or supporter.
The law Gonzales is relying on is the Authorization to Use Military Force, which Congress passed and Bush signed a week after 19 hijackers crashed four commercial jets into the World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 people.
The administration's interpretation allowed the government to avoid requirements under the 1978 Foreign Intelligence Surveillance Act. The act established procedures that an 11-member court used in 2004 to oversee nearly 1,800 government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.
'I think they were aggressive,' said Pepperdine University law professor Douglas Kmiec, who served in the Justice Department during the Reagan and first Bush administrations.
"Were they right? Here, I think context matters. Within six months, 12 months of the attacks, I think that the AUMF (authorization law) would have been a basis for legal authority," he said. "But that diminishes the further we are from the attacks."
... Kmiec said Bush clearly believes he did the right thing and deserves credit for keeping some members of Congress informed. "But he was entirely reliant on the quality of legal advice he received," Kmiec said.
Gonzales, who was White House counsel when the program was created, said just because Congress' war authorization doesn't mention electronic surveillance doesn't mean the law doesn't allow it. He cited a 2004 plurality opinion by Supreme Court Justice
Sandra Day O'Connor to back him up. Although Congress never included the word "detention" in the war authorization, O'Connor said lawmakers gave the president power to detain enemy soldiers — even U.S. citizens — captured on the battlefield.
"That's ridiculous," said Harvard University law professor Laurence Tribe. "O'Connor wasn't saying that anything not mentioned (in the authorization) is OK ... To use that to say it's OK to eavesdrop on people ... is to stretch the authorization completely beyond recognition.""
- posted by geoff @ #