By EDWARD EPSTEIN
San Francisco Chronicle
February 08, 2006
The Bush administration cites the resolution for the authorization of military force as a legal basis for the president's order for the secret National Security Agency to eavesdrop on phone calls and e-mails without a warrant issued by a special court.
But many in Congress, from both parties, say they authorized no such thing when they granted Bush the right to wage war against al Qaeda, in the aftermath of the terrorist attacks on New York and the Pentagon.
What's more, they warn, Bush's claim of such sweeping powers will hamstring future presidents, because Congress will seek to limit the scope of future resolutions.
"If you came back next time, or the next president came back to this body, there would be a memory bank established here," Sen. Lindsey Graham, R-S.C., told Attorney General Alberto Gonzales at a Senate Judiciary Committee hearing on Monday.
"And I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far, and the exceptions may be a mile long," Graham said.
The conservative Graham was joined by the liberal Sen. Barbara Boxer, D-Calif., in defending Congress' power. "The next time we give any president power, we're going to have to really make sure we understand each other," she told reporters Tuesday.
Since the New York Times last December disclosed the existence of the spying, which Bush has reauthorized 30 times since 2001, the administration has put forth a three-pronged legal defense of its use.
First, it says the president has inherent and sweeping war-making powers under Article 2 of the Constitution, as shown by warrantless wartime eavesdropping undertaken by past presidents.
Secondly, it cites the September 2001 resolution.
In his Judiciary Committee written testimony, Gonzales said that those who call the security agency program illegal ignore "the reality of the Sept. 11 attacks on our soil."
"Given this background, Congress certainly intended to support the president's use of force to repel an unfolding attack within the United States," added Gonzales, who insisted the agency's intercepts are limited to phones and e-mails between al Qaeda suspects in this country and abroad.
The administration's third justification is a tricky one. The 1978 Foreign Intelligence Surveillance Act, enacted after decades of illegal FBI wiretaps, said the only course for obtaining a wiretap in cases involving foreign powers was through a warrant issued by a special federal court. But it gave future presidents an exception, the administration argues, by granting Congress the power to enact future statutes allowing warrantless activity.
And the Sept. 14, 2001, resolution is exactly such a future statute, the administration contends.
The administration's reasoning led to sharp exchanges during Gonzales' seven-hour appearance Monday before the Judiciary Committee.
"Well, Mr. Attorney General, we're getting the impression that this administration's kind of picking and choosing what they are subject to. Can you show us in the authorization of use of military force what is the specific language you say that's authorizing wiretapping of Americans without a warrant?" asked Sen. Patrick Leahy, D-Vt., the committee's ranking minority Democrat.
In his answer, Gonzales cited the 2004 U.S. Supreme Court decision in the case of Yaser Hamdi, a U.S. citizen. The court ruled that Bush had the power to detain Hamdi, who was taken into custody as an enemy combatant after the 2001 terrorist attacks, even though the force resolution didn't mention such powers.
"Sir, there is no specific language, but neither is it specific language to detain American citizens. And the Supreme Court said that the words 'all necessary and appropriate force' means all activities fundamentally incident to waging war," he said.
Gonzales didn't mention that Justice Sandra Day O'Connor added, in upholding Hamdi's detention, that a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Sen. Dianne Feinstein, D-Calif., told Gonzales she was deeply troubled by the administration's reasoning.
"You have advanced what I think is a radical legal theory here today. The theory compels the conclusion that the president's power to defend the nation is unchecked by law; that he acts alone and according to his own discretion, and that the Congress's role, at best, is advisory," she said.
While the use-of-force resolution was passed with minimal floor debate, and with only Rep. Barbara Lee, D-Oakland, dissenting, it has now become apparent that congressional leaders and the Bush administration discussed the wording. Former Senate Majority Leader Sen. Tom Daschle, D-S.D., said recently that Bush wanted wording added that would specifically permit the warrantless spying, but that Daschle objected and it was withdrawn.
On the other side, some Republican senators at Monday's hearing said the security agency spying was a natural and necessary outgrowth of presidents' wartime powers and of the 2001 resolution.
Sen. John Cornyn, R-Texas, said: "It strikes me as odd to say that Congress authorized the commander in chief to capture, to detain, to kill, if necessary, al Qaeda, but we can't listen to their phone calls and we can't gather intelligence to find out what they're doing so we can prevent future attacks against the American people."
And Sen. Jeff Sessions, R-Ala., said to Gonzales, "Everybody understood after 9/11 that our failure was not in the capability to stop people, it was our capability to identify them. This program seems to me to be a step forward in our ability to identify them. And I believe as you've explained it, it's consistent with our law."
Four of the committee's 10 Republican senators sought to head off a possible constitutional showdown by suggesting the Republican president and Congress write a law to authorize the program.
But the administration shows little interest.
"We believe that we have all the legal authority we need," Vice President Dick Cheney said Tuesday on PBS' "NewsHour with Jim Lehrer."
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