Media Matters
Tuesday, December 19, 2006

A December 17 Associated Press report falsely suggested that Congress would need to pass a law to prohibit the Bush administration from "eavesdrop[ping] on Americans' electronic communications" without a warrant. In fact, such a law already exists -- the Foreign Intelligence Surveillance Act of 1978 (FISA) -- and the Bush administration's apparent violation of FISA has given rise to bipartisan condemnation. The article, discussing what actions Congress could take in response to President Bush's warrantless domestic wiretapping program, stated that "[t]he president ... can veto legislation, including a law demanding the National Security Agency obtain warrants before monitoring communications."

The AP report also stated that "[w]hen the Republican-controlled Congress adjourned last week, it left the spying program unchecked" and that "[t]he next move falls to the Democrats who take control in January and are considering a proposal to demands [sic] Bush get warrants and others lengthening the time between surveillance and when a warrant must be obtained." But the article did not mention that FISA already "demands [that] Bush get warrants" and requires that "the National Security Agency obtain warrants before monitoring communications" of U.S. citizens and legal residents who are in the United States. As Media Matters for America has noted, The New York Times reported on December 16, 2005, that Bush authorized the National Security Agency to "eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying." Three days later, in a December 19, 2005, press conference, Bush acknowledged the warrantless wiretapping program's existence and said that since September 11, 2001, he had "reauthorized this program more than 30 times."

Indeed, it is FISA that specifies the amount of "time between surveillance and when a warrant must be obtained" in an emergency, which, as Media Matters for America has noted, is 72 hours. Proposals to "lengthen[]" this time would amend the existing law.

From the December 17 report by Associated Press writer David Kravets:

Federal agents continue to eavesdrop on Americans' electronic communications without warrants a year after President Bush confirmed the practice, and experts say a new Congress' efforts to limit the program could trigger a constitutional showdown.

High-ranking Democrats set to take control of both chambers are mulling ways to curb the program Bush secretly authorized a month after the Sept. 11 attacks. The White House argues the Constitution gives the president wartime powers to eavesdrop that he wouldn't have during times of peace.

"As a practical matter, the president can do whatever he wants as long as he has the capacity and executive branch officials to do it," said Carl Tobias, a legal scholar at the University of Richmond in Virginia.

Lawmakers could impeach or withhold funding, or quash judicial nominations, among other measures.

The president, however, can veto legislation, including a law demanding the National Security Agency obtain warrants before monitoring communications. Such a veto would force Congress to muster a two-thirds vote to override.

"He could take the position he doesn't have to comply with whatever a new Congress says," said Vikram Amar, a law professor at the University of California, Hastings, and a former Supreme Court clerk.

Douglas Kmiec, a former Justice Department official under former presidents Reagan and George H.W. Bush, speculated the younger Bush would assert executive authority to continue eavesdropping in the face of new legislation -- perhaps leaving the Supreme Court as the final arbiter.

"He has as much a constitutional obligation to assert himself, just as much as Congress does," Kmiec said. "We do need an arbitrator, an interpreter. That's what the courts, the third branch of government, was intended to be."

On Dec. 17, 2005, Bush publicly acknowledged for the first time he had authorized the NSA to monitor, without approval from a judge, phone calls and e-mails that come into or originate in the U.S. and involve people the government suspects of having terrorist links.

Bush said he had no intention of halting what he called a "vital tool" in the war on terror.

When the Republican-controlled Congress adjourned last week, it left the spying program unchecked.

The next move falls to the Democrats who take control in January and are considering a proposal to demands Bush get warrants and others lengthening the time between surveillance and when a warrant must be obtained.