Editorial: Spying defense rings hollow

Wednesday, Jan. 11, 2006 | 8:15 a.m.

President Bush is having a difficult time defending his approval of warrantless eavesdropping on international phone calls and e-mails made by Americans. The once-secret monitoring was begun by the National Security Agency shortly after 9/11. In giving sole discretion to the NSA, Bush ignored the legal requirement that a special court be involved.

Within days after The New York Times reported on the secret program last month, federal judge James Robertson resigned in protest from his position on the 11-member Federal Intelligence Surveillance Court. This is the special court created under the 1978 Foreign Intelligence Surveillance Act, known as FISA. The court's sole job is to review federal requests for domestic eavesdropping, and to rule quickly on whether warrants should be issued.

In the event that a warrant is denied, the federal government can appeal to a three-judge review panel. And in the event there is no time to apply for warrants, the federal government can instantly initiate monitoring and apply for warrants later. Despite the quickness and latitude offered by this court, Bush decided to bypass it and start a massive domestic spying program on his own authority. Bush argues that Article 2 of the U.S. Constitution, which establishes him as commander in chief of the military forces, grants him the power to act without court authority. Many constitutional scholars and many members of Congress disagree.

Bush additionally says the language Congress used after 9/11 in authorizing him to "use all necessary and appropriate force" to prevent another terrorist act also empowers him to spy on Americans without court involvement.

Many members of Congress are disputing this point, too. On Friday, Congress received a report from its nonpartisan research arm, the Congressional Research Service, rejecting Bush's assertions.

With congressional hearings on the issue set to begin as early as next month, the Bush administration is seeking support for its position. According to a story in Tuesday's New York Times, the Justice Department on Monday held a closed-door meeting for judges on the FISA court and a number of them attended. The paper reported that some of the judges have expressed concern about the secret monitoring, and that the meeting was called to present the administration's side of the story.

We hope that members of Congress will not be swayed by subjective arguments, such as the United States is a different country since 9/11 and we need an all-powerful president. The actions of all presidents, including Bush, should be judged on an objective examination of the powers expressly granted to them by the Constitution and the Congress.