boston.com your connection to The Boston Globe

Bush launches a bid to justify domestic spying

WASHINGTON -- President Bush yesterday launched a weeklong blitz of election-style campaigning to build support for his domestic spying program, seeking to persuade the country to uphold his power to bypass laws in the interest of national security -- a power that many legal scholars say he does not have.

Bush's speech at Kansas State University yesterday was the first of a series of planned events focusing on terrorism leading up to his State of the Union address on Jan. 31.

In the Kansas State event, Bush declared that he does not need to follow a law requiring warrants to spy on Americans because Congress authorized him to use force against terrorists in 2001.

''I'm not a lawyer, but I can tell you what it means," Bush said. ''It means Congress gave me the authority to use necessary force to protect the American people but it didn't prescribe the tactics . . . If they [terrorist suspects] are making phone calls into the United States, we need to know why, to protect you."

Bush paused, and an audience of about 9,000 broke into applause.

The president is touting his spying program at the start of a crucial year for his party. Bush's aides have argued in recent weeks that he can boost his approval ratings by emphasizing his willingness to use any means necessary to fight terrorism. He is also trying to use popular will to blunt upcoming Senate hearings on whether the surveillance program is legal.

On a legal level, however, Bush's initiative has deeper implications, analysts said. If the public and the Congress accept Bush's assertion of power, they would clear the way for an increase in presidential power that could last long after Bush leaves office, the analysts said.

''This power will lie around like a loaded weapon for any future incumbent to use when he wants to override a law," said Bruce Fein, a former Justice Department official in the Reagan administration. ''There will be terrorism forever, so it will become a permanent fixture on our legal landscape."

Bush's speech was part of a coordinated series of events by the administration to build support for the internal eavesdropping program.

Attorney General Alberto Gonzales is scheduled to deliver a speech about the program today, and tomorrow, Bush plans to visit the headquarters of the National Security Agency, which oversees the spying program.

The administration also sent the former director of the agency, General Michael Hayden, to give an address yesterday defending the program. Speaking in Washington, Hayden said the spying was aimed only at terrorists.

''There are no communications more important to the safety of this country than those affiliated with Al Qaeda with one end in the United States," said Hayden, who is now deputy director of national intelligence. ''The president's authorization allows us to track this kind of call more comprehensively and more efficiently."

But Bush's critics, including many conservatives who are usually allied with the White House, say the president should have asked Congress to change a 1978 surveillance law requiring warrants, rather than declare that he has the power to ignore it.

''These efforts might enable Mr. Bush to prevail in the court of public opinion, but his repeated declarations that the NSA program is legal does not make it legal," said Timothy Lynch of the libertarian Cato Institute. ''The transcendent issue is this idea that the president can choose which laws he's going to follow and which laws he's not."

In his speech yesterday, Bush scoffed at a notion that he had broken the law, citing his wartime powers to protect national security.

As proof that he was acting in good faith, Bush noted that the White House gave classified briefings to lawmakers who lead the intelligence committees.

''I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process," Bush said. ''You know, it's amazing when people say to me, 'Well, he was just breaking the law.'

''If I wanted to break the law, why was I briefing Congress?"

Bush chuckled, and the crowd of Kansas State students, faculty members, and soldiers from nearby Fort Riley burst into laughter, and then more applause.

Several of the lawmakers who had received the briefings have since said they were not given enough information to understand the program at the time, nor were they allowed to discuss it with anyone.

And the Senate Judiciary Committee chairman, Arlen Specter, Republican of Pennsylvania, said on CNN yesterday that Bush was required by law to brief every member of the intelligence committee, not just its leaders.

Specter characterized Bush's argument for bypassing the law as ''a stretch."

''The initial claim to authority from the resolution to authorize the use of force, I think, is very, very thin," Specter said.

Democrats were more blunt. Senator John F. Kerry, Democrat of Massachusetts, said Bush ''failed to explain why he considers himself above the law."

And Senator Edward M. Kennedy, also a Massachusetts Democrat, said: ''If the president needs more powers to protect the American people from terrorism, he should come to Congress to modify current laws, not act arrogantly and unilaterally."

Last week, Gonzales sent Specter a 42-page legal memo arguing that the spying program was lawful under Bush's wartime powers. The source of those powers, the memo said, are the Constitution and Congress's use-of-force authorization after the Sept. 11, 2001, terrorist attacks.

Martin Lederman, a former Justice Department official in the Clinton administration who now teaches law at Georgetown University, said the memo is full of overly broad propositions and ''clever but completely counterintuitive arguments."

The memo, Lederman said, fails to overcome the long history of Congress passing laws that establish the ground rules for how presidents run the military. Moreover, he said, the memo presents no evidence that Congress intended to waive the 1978 surveillance law when it authorized Bush to use force against Al Qaeda.

Fein, a conservative who backs the president's judicial nominations, said Bush should ask Congress to pass a law authorizing the spying program. Bush's decision to stand his ground on his wartime authority to bypass the law, Fein said, could be terrible for the country whether or not Bush succeeds in subduing his critics.

By refusing to back down, Bush is essentially telling Congress either to impeach him or let him be, Fein said.

''If Bush wins, it will be a horrible precedent that will endanger the separation of powers for the living and those yet to be born," he said. ''And if he loses, it will cause internal convulsions because we will have to replace the president midterm while the terrorists look on and laugh and cheer. Neither option is to be relished."

The debate over Bush's wartime powers to bypass laws has been simmering since the terrorist attacks of Sept. 11, 2001, but in recent weeks it has reached a boil.

Also last month, Bush said he can waive a new law restricting the use of torture during interrogations.

In addition, the Supreme Court is considering whether to hear a challenge to Bush's power to arrest a citizen on US soil and imprison him in a military brig without access to the courts.

SEARCH THE ARCHIVES
 
Today (free)
Yesterday (free)
Past 30 days
Last 12 months
 Advanced search / Historic Archives