Legal Test Was Seen as Hurdle to Spying

Times Staff Writers

Since Sept. 11, 2001, an obscure but powerful tribunal -- the Foreign Intelligence Surveillance Court -- has been a solid ally of the Bush administration, approving hundreds of requests allowing government agents to monitor the conversations and communications of suspected terrorists.

So why did the administration go around the court in devising its most secret surveillance program?

Top Bush administration officials said Monday that a controversial domestic eavesdropping program they ordered up after Sept. 11 without the court’s permission reflected the “inefficiencies” of going to a judge and the need for a more “agile” approach to detecting and preventing terrorist attacks.


But they also indicated that they had a more fundamental concern: the tougher legal standard that must be met to satisfy the court. The 1978 law creating the secret tribunal, the Foreign Intelligence Surveillance Act, authorizes intelligence gathering in cases in which the government can establish “probable cause” that the target is working for a “foreign power” or is involved in terrorism.

In briefing reporters Monday, Atty. Gen. Alberto R. Gonzales said that President Bush’s 2002 order allowed for surveillance in cases in which officials had “a reasonable basis” to conclude that one of the parties to the communication had terrorist links. Those judgments were made not by a court, as the law provides, but by shift supervisors at the National Security Agency.

Some experts said that easier-to-satisfy “reasonable basis” standard probably was a key reason for the administration’s decision. “It is certainly different than probable cause,” said Michael J. Woods, a Washington lawyer and former head of the national security law unit at the FBI. “That, in my mind, is a much more likely reason why they maintained this” surveillance program.

The revelation came on a day when the administration stepped up its defense of the secret spying program amid growing congressional and public concern. The plan, which surfaced in media reports last week, has allowed the government to monitor, without warrants, hundreds of people in the U.S. communicating with people overseas.

Although the program is relatively new, the justification put forth by the administration is a familiar one: that the powers of the president are broad and sweeping when it comes to waging war. The 1978 law established the Foreign Intelligence Surveillance Court as the sole judge of intelligence gathering in the U.S. But the administration said it was free to ignore the law: Officials cited the inherent power of the president under the Constitution. They also said that Congress had at least tacitly overridden the law when it authorized Bush to militarily engage the enemy after Sept. 11.

At the time, the country was still shaken by the terrorist attacks in New York and the Pentagon, and there was widespread agreement that the nation had to act to protect itself. It was in this context that Bush first ordered the surveillance.


But such assertions of presidential power are raising questions about whether there are limits. “Where is the stopping point?” asked Carl Tobias, a law professor at the University of Richmond in Virginia.

Although officials have said the program has been effective in detecting and preventing attacks in the United States, they also acknowledged Monday that they had made some mistakes and listened in on people who turned out not to pose a threat. They declined to offer details.

“If this particular line of logic, this reasoning, that took us to this place proves to be inaccurate, we move off of it right away,” said Lt. Gen. Michael V. Hayden, the former head of the NSA and now deputy director of national intelligence.

Hayden said that although “this is a more ... aggressive program than would be traditionally available,” he also believed it was “less intrusive” of privacy rights.

“It’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order. And our purpose here, our sole purpose, is to detect and prevent,” he said.

In a news conference Monday, Bush asserted that as commander in chief, he could bypass the 1978 law, citing a broad claim of executive power that has not been upheld by the Supreme Court.


“Do I have the legal authority to do this? .... The answer is absolutely,” Bush said. “The legal authority is derived from the Constitution.... As president and commander in chief, I have the constitutional responsibility and constitutional authority to protect our country.”

Gonzales said he had advised Bush that he had “an inherent authority as commander in chief” to order the spy agency to eavesdrop on suspicious phone calls, despite the legal requirement of a judicial warrant.

In the past, the Supreme Court has said the president’s power as commander in chief gives him authority over the military and its battlefield operations, but not matters on the home front. In 1952, the court rejected President Truman’s claim that he had the power to operate the nation’s steel mills during the Korean War.

Last year, the high court rejected, 8 to 1, Bush’s claim that he had the power as commander in chief to hold and detain Americans without a hearing, even if they were captured on foreign battlefields fighting for the enemy.

“We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” Justice Sandra Day O’Connor said in the case of Hamdi vs. Rumsfeld. The Constitution “most assuredly envisions a role for all three branches [of government] when individual liberties are at stake,” she said.

It is not known who the targets of the secret surveillance conducted by the National Security Agency were. The president described them as people in the United States “with known links to Al Qaeda and related terrorist organizations.” Some of those targeted might have been U.S. citizens.


Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action.

“I think the authorization of use of military force is probably adequate as an authorization for surveillance,” said Cass Sunstein, a University of Chicago law professor.

The Supreme Court also said last year this authorization was a legal basis for detaining Yaser Esam Hamdi, a U.S. citizen who was captured in Afghanistan. But the justices disagreed with the administration over its refusal to give him a hearing.

Democrats in Congress were not inclined to accept Bush’s claim that the 4-year-old military authorization, combined with the president’s commander-in-chief power, gave him the authority to secretly go around the law.

“I believe this interpretation of the Constitution is both incorrect and dangerous,” Sen. Dianne Feinstein (D-Calif.) said.

In the fall of 2001, Democrats and Republicans on the Senate Judiciary Committee worked on the Patriot Act and debated giving the Bush administration more leeway to conduct surveillance on terrorism suspects. But the latest disclosures suggest that the administration didn’t believe it needed permission and thought the president could go around the limits set by the law.


Sen. Russell D. Feingold (D-Wis.) rejected Bush’s legal argument Monday as far-fetched. “The president had, I think, made up a law that we never passed.”