Editorial: Call president on the carpet

Tuesday, Dec. 20, 2005 | 8:57 a.m.

President Bush says he has the constitutional authority to monitor the phone calls and e-mails of Americans without first getting authorization from a judge. It is a power he must have to protect Americans from any more terrorist attacks, he says.

Bush says he derives this power from Article 2 of the U.S. Constitution, which establishes the president as commander in chief of the armed forces. But this contention is disputed by many members of Congress.

The New York Times broke the story of Bush's electronic eavesdropping last week. It was a major story because wiretapping without court permission violates federal law. Members of Congress, both Republicans and Democrats, were alarmed by the news. Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, has called for congressional hearings, as have Senate Democrats.

Telephone calls and e-mails have been monitored by the National Security Agency in about 500 instances since October 2001, Bloomberg News reported Monday, quoting an unnamed Bush administration official. In a news conference Monday, Bush said the electronic surveillance is aimed only at "people with known links to al-Qaida." And Attorney General Alberto Gonzales said the surveillance is conducted only when "one party to the communication is outside the U.S."

If the government is to use the extreme step of secretly tapping into people's private conversations, it should ensure that federal laws and the Constitution are upheld. While there are no laws prohibiting, or even regulating, the use of wiretapping by U.S. government agents outside of the country, federal law is clear about the wiretapping of American citizens and foreign nationals within our borders. It cannot be done without court supervision, in keeping with the Fourth Amendment's privacy guarantees.

This is why Bush's assertion that he has the constitutional authority to exclude the courts in ordering wiretapping is perplexing. The Constitution requires the president to take an oath swearing that he will defend the Constitution. And Article II, Section 3 of the Constitution says, "(the president) shall take care that the laws be faithfully executed."

Bush is not "taking care" when he secretly orders his administration to bypass federal law.

The president and his advisers are also seeking refuge in language that Congress used after 9/11. It authorized the president to "use all necessary and appropriate force" in protecting America from another terrorist attack. We do not believe Congress intended for the president to view that authority as a license to trample the country's rights for which so much blood has been shed.

Congress should waste no time in scheduling hearings on Bush's wiretapping activities. Bush should be compelled to explain why he finds it necessary to shove aside the courts, an action which is a clear invitation to an abuse of power.