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Duke law professor rebuts Bush claims Jeffery K. Ritter : Herald-Sun | February 7 2006 DURHAM -- The administration's wiretapping operations are "essentially eliminating" the federal checks and balances system and may be unconstitutional, a Duke law professor said Monday. Curtis Bradley, an expert on foreign relations and constitutional law who served as an administration legal adviser in 2004, said the president's post-9/11 wiretapping practices may be unlawful. "It poses concerns," Bradley said in an interview. "If they decide a law is no longer adequate and go underground to change it, that is essentially eliminating the checks and balances system." The Justice Department recently sent Congress a 42-page justification of the president's wiretapping, which included an article co-authored by Bradley. He said in an interview Monday with National Public Radio that the Justice Department misinterpreted the article. "It's taking the article out of context to claim the president has this inherent authority to conduct domestic surveillance, when in fact he is operating against a certain statute," Bradley said. That statute, the Foreign Intelligence Surveillance Act, was established in 1978 and gave the government the authority to secretly wiretap individuals after obtaining a court warrant. FISA continues to allow for surveillance in presence of "probable cause." In the weeks after 9/11, Congress passed the U.S. Patriot Act, loosening the definition of probable cause to include "any investigation to gather foreign intelligence information." The standards for obtaining a warrant are tougher if the target is a U.S. citizen; there must be probable cause to believe the activities may involve spying or other conduct that could be linked to terrorist activities. "The standards are quite lenient," Bradley said. "Apparently, the Bush administration decided that statute was not sufficient for their needs." Since FISA was passed, federal courts have approved more 10,000 wiretapping warrants and denied only five, Bradley said. Bradley's remarks came the same day the Senate Judiciary Committee held a hearing into the use of secret surveillance by the National Security Agency. There was one witness: Attorney General Alberto Gonzales. He declared that the authority to authorize wiretaps was implicit in Bush's role as commander-in-chief, and that the congressional resolution in response to the Sept. 11 terrorist attacks had authorized the president to "to use all necessary and appropriate force against al-Qaida." "The terrorist surveillance program is necessary, it is lawful and it respects the civil liberties we all cherish," Gonzales said. White House Press Secretary Scott McClellan declined to comment on Gonzales' testimony, but called the NSA wiretapping "useful" and "vital." "I think the American people understand the importance of the president doing everything he can within his power to prevent attacks from happening," McClellan said. "He has not only the authority to do this, but he has the responsibility to do this ... The reason we don't talk more about it is because we don't want al-Qaida to have our playbook." |
