Several Constitutional scholars see the president’s actions as both unconstitutional and illegal

As a Federal Judge Resigns to Protest Secret Bush Wiretaps, Leaders of Both Parties Express Serious Concerns Over Legality of President’s Covert Domestic Spying Program
Date Published: December 22, 2005
Source: Newsinferno News Staff

On December 15, after sitting on the story for a year, The New York Times published a report entitled, “Bush Lets U.S. Spy on Callers Without Courts.” In a country founded upon such ideals as, “Give me liberty, or give me death,” the reaction was swift and predictable.

Other than for those in the president’s inner circle, there has been bipartisan criticism of the secret program by which “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.” (N.Y. Times 12/16/05)

Republicans who have been staunch supporters of the president are now beginning to feel nervous as the unpopular White House policy has been met with overwhelming public condemnation. Every published poll has been overwhelmingly unfavorable despite the president’s repeated claim that such extreme measures are needed and justified due to the current “war on terrorism.”

Even influential Republican Senator Arlen Specter of Pennsylvania, chairman of the powerful Senate Judiciary Committee has promised to hold hearings on the matter early next year stating: "There is no doubt that this is inappropriate."

Sen. John McCain, R-Arizona, said he would support hearings if they were organized carefully to avoid helping al-Maida. "We need to know ... why they didn’t go through the normal" procedure of obtaining warrants before intercepting domestic communications," McCain said on ABC’s This Week.

Several Constitutional scholars like Prof. Susan Low Bloch of Georgetown University see the president’s actions as both unconstitutional and illegal. As professor Bloch indicated in an interview on MSNBC last evening, the president is not specifically empowered to order the secret surveillance by either the Constitution or any existing federal statute.

Moreover, the administration is not, and does not claim to be, following the statute known as the Foreign Service Intelligence Authority which gives the president certain limited authority to conduct surveillance activity.

When former presidents Clinton and Carter acted under FISA (Federal Intelligence Surveillance Act) they did so pursuant to specific subdivisions of the statute and after making the Executive Order public.

President Bush has failed to comply with the statute, and has kept the order under which he authorized the surveillance activities, secret. Had it not been for the N.Y. Times report, the activity would have remained secret.

When the New York Times published its report, President Bush immediately went on the offensive declaring “it was a shameful act for someone to disclose this important program in a time of war.”

Sen. Dianne Feinstein (D-California), a member of the intelligence and judiciary committees, called the secret program "the most significant thing I have heard in my 12 years" in the Senate. She went on to state: "How can I go out, how can any member of this body go out, and say that under the Patriot Act we protect the rights of American citizens if, in fact, the president is not going to be bound by the law?"

Sen. Feinstein and many other lawmakers believe that the president may have broken the law by authorizing surveillance without proper warrants.

Constitutional scholars are even more definite on this with Prof. Bloch stating, “I think there is a very good argument that he broke the law.” She strongly suggests that the matter be taken up in a congressional hearing. Harvard Law School Professor Laurence Tribe, expressed doubts about the legality of the surveillance. Such a policy, Tribe said, is illegal "without congressional authorization" and even then would violate the Fourth Amendment ban on unreasonable searches and seizures.

The New York Times disclosed that: “Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program’s legality. But nothing came of his inquiry. ‘People just looked the other way because they didn’t want to know what was going on,’ he said.

“A senior government official recalled that he was taken aback when he first learned of the operation. ‘My first reaction was, “We’re doing what?”’ he said. While he said he eventually felt that adequate safeguards were put in place, he added that questions about the program’s legitimacy were understandable.”

The Washington Post (12/17, A01) noted: “Congressional leaders of both parties called for hearings and issued condemnations yesterday in the wake of reports that President Bush signed a secret order in 2002 allowing the National Security Agency to spy on hundreds of U.S. citizens and other residents without court-approved warrants.”

President Bush as taken an aggressive, almost defiant, stand on the matter stating; "Do I have the legal authority to do this? And the answer is, absolutely," at a year-end news conference.

Three Democratic senators, however, called for suspension of the secret program until Congress can hold hearings on its legality.

"He is the president, not a king," said Sen. Russ Feingold, D-Wisconsin, who was joined by Sens. Carl Levin of Michigan and Jack Reed of Rhode Island. Feingold, Levin and Reed said the Foreign Intelligence Surveillance Act of 1978 already gives the president power to quickly tap phones, intercept e-mails and seek a warrant after the fact. "I’m at a loss to understand why they adopted this extreme legal procedure," Reed said.

All of this has raised the issue of whether the president has committed an impeachable offense. Experts like Prof. Bloch point out that, while the conduct may be unconstitutional and illegal, impeachment is a harsh term to use at this stage before hearings are held and the matter is probed in greater detail. She added that the misuse of the impeachment process during the Clinton Administration should not be repeated.

Yesterday, however, more fuel was added to the fire when U.S. District Judge James Robertson resigned from a special court set up to oversee a government surveillance in protest of President Bush’s secret authorization of warrantless domestic spying on individuals. He will retain his parallel position as a district judge.

Robertson was one of 11 members of the secret Foreign Intelligence Surveillance Court, which oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.

According to The Washington Post, the resignation was prompted by Judge Robertson’s concern that the surveillance program that Bush authorized was legally questionable and may have tainted the work of the court.

The chief judge of the FISC has announced that the remaining 10 judges intend to meet in the near future to discuss the secret program.
http://www.newsinferno.com/storypages/12-22-2005~001.html