RENEE MONTAGNE, host:
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The Bush administration is defending the use of wiretaps without warrant by the National Security Agency in response to growing criticism of the program. The Justice Department, yesterday, released a lengthy legal justification for the domestic eavesdropping effort. The move comes as civil liberties groups are suing the administration to find out how the program works and to stop it, if possible.
NPR's Larry Abramson reports.
LARRY ABRAMSON reporting:
The Justice Department's explanation, sent by Attorney General Alberto Gonzales to Congress yesterday, runs 42 pages, but it can be boiled down to one sentence: The NSA activities are an indispensable aspect of the defense of the nation following the 9/11 attacks. The document expands on the administration's belief that the 1978 Foreign Intelligence Surveillance Act did not and could not take away the president's power to wiretap in the national defense. The Justice Department would not speak on tape, but former federal prosecutor Andrew McCarthy sums it up this way.
Mr. ANDREW MCCARTHY (Former Federal Prosecutor): If the president has inherent authority to conduct national security surveillance, then he has it as a matter of constitutional law. The president's Article Two authority trumps the authority of Congress.
ABRAMSON: McCarthy has written articles explaining that the courts have recognized the power to eavesdrop and search people without a warrant if circumstances call for it. Take traffic stops for drunk drivers, he says. McCarthy echoes the Justice Department's contention that the attacks by al-Qaeda put the country on a wartime footing that could justify a whole host of aggressive measures by the president.
Mr. MCCARTHY: During wartime, without probable cause, we can actually kill. We can capture. We can detain. We can destroy property.
ABRAMSON: The Justice Department argued that even if the president's constitutional power fell short, Congress passed the authorization for the use of military force just after 9/11. While critics have pointed out that resolution did not mention domestic wiretapping, the administration insists the resolution authorized the president to use all necessary and appropriate force.
Chicago-based attorney John Schmidt worked in the Justice Department under President Clinton. He says that clearly includes domestic wiretapping.
Mr. JOHN SCHMIDT (Attorney): We're talking about a foreign power that has attacked in this country and is reasonably believed to be preparing to attack again. And we're talking about the president having the authority to do the surveillance necessary to find out where and when that next attack may occur.
ABRAMSON: Not surprisingly, the many critics of the NSA program met the document with scorn. They asked, what's the point of passing the Foreign Surveillance Act if not to provide court oversight for such wire taps?
David Cole of Georgetown University Law School says Congress spelled out exactly how the president can conduct domestic wiretaps during wartime.
Professor DAVID D. COLE (Law, Georgetown University Law Center): And it said the president can do it, but only for the first 15 days of the conflict; and if he needs broader authority, he is supposed to come back to Congress and seek broader authority.
ABRAMSON: And Marc Rotenberg of the Electronic Privacy Information Center says the administration could have asked for an amendment to the Foreign Intelligence Surveillance Act after 9/11.
Mr. MARC ROTENBERG (Electronic Privacy Information Center): There were clearly opportunities for the White House to present the argument on the need to amend the FISA, if that's what they felt they needed to do. They chose not to do that.
ABRAMSON: The Electronic Privacy Information Center filed suit against the administration yesterday, demanding immediate access to government documents on the NSA surveillance program. That comes on top of two civil rights suits filed this week that seek to have the program declared illegal. The administration's response has been unequivocal.
Vice President Dick Cheney spoke yesterday at the Manhattan Institute.
Vice President DICK CHENEY: These actions are within the president's authority and responsibility under the Constitution and laws, and these actions are vital to our security.
ABRAMSON: The entrenched position of both sides should make for an incendiary hearing when Attorney General Gonzales defends the program before Congress early next month.
Larry Abramson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
