Editorial: Spying defense fails smell test

Saturday, Feb. 4, 2006 | 12:31 p.m.

Ten words used by President Bush in his State of the Union speech are being disputed by prominent law professors. In defending his use of warrantless spying on overseas calls by Americans, Bush said, "Previous presidents have used the same constitutional authority I have."

Law professors at the University of Chicago, Georgetown University and Harvard, interviewed by The Boston Globe, said Bush does not have the constitutional authority for warrantless spying he claims to have, and that no president has engaged in that type of spying since Congress passed a law in 1978 banning it.

Bush's statement was "either intentionally misleading or downright false," Georgetown professor David Cole told the Globe. Harvard professor Philip Heymann said, "I know of no electronic surveillance for intelligence purposes since the 1978 warrant law was passed that was not done under the statute." And University of Chigago law professor Richard Epstein said he found "every bit of (Bush's) argument disingenuous."

We have written that Bush overstepped his wartime powers when he defied Congress' 1978 law. As more and more legal scholars come to hold that view as well, it is imperative that Congress hold the president accountable.