As spying program draws criticism, Cheney calls for expanded presidential powers

WASHINGTON – Vice President Dick Cheney on Tuesday called for "strong and robust" presidential powers, saying executive authority was eroded during the Watergate and Vietnam eras. Some lawmakers objected that President Bush's decision to spy on Americans to foil terrorists showed he was flexing more muscle than the Constitution allows.

The revelations of Bush's four-year-old order approving domestic surveillance without court warrants has spurred a fiery debate over the balance of power between the White House, Congress and the judiciary.

"I believe in a strong, robust executive authority and I think that the world we live in demands it," Cheney said.

"I would argue that the actions that we've taken there are totally appropriate and consistent with the constitutional authority of the president. ... You know, it's not an accident that we haven't been hit in four years," the vice president said, speaking with reporters on Air Force Two en route from Pakistan to Oman.

On Capitol Hill, senators from both parties said the role of Congress cannot be sidelined – even in wartime.

"I think the vice president ought to reread the Constitution," said Sen. Edward Kennedy, D-Mass.

Democrats said they were deeply troubled by the surveillance program, and contended the president had no authority to approve it. "He has no legal basis for spying on Americans without court approval," said Sen. Richard Durbin of Illinois, the No. 2 Democrat in the Senate.

Republicans said Congress must investigate whether Bush was within the law to allow the super-secret National Security Agency to eavesdrop – without warrants – on international calls and e-mails of Americans and others inside the United States with suspected ties to al-Qaeda.

"I believe the Congress – as a coequal branch of government – must immediately and expeditiously review the use of this practice," said Sen. Olympia Snowe, R-Maine.

Snowe joined three other members of the Senate Intelligence Committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.

The administration defends the program, saying Congress gave Bush the authority to use "signals intelligence" – wiretaps, for example – to eavesdrop on international calls between U.S. citizens and foreigners when one of them is a suspected al-Qaeda member or supporter.

Attorney General Alberto Gonzales cites the Authorization to Use Military Force law, which Congress passed and Bush signed a week after the Sept. 11 terrorist attacks. The administration believes that law lets the government avoid provisions of the 1978 Foreign Intelligence Surveillance Act.

The surveillance act was passed after public outcry over abuses during the Nixon administration, which spied on anti-war and civil rights protesters. Under the act, known as FISA, an 11-member court oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.

"I'm not a lawyer, but in my reading, it is pretty conclusive, very conclusive, that FISA prohibits all warrantless electronic surveillance of Americans in America," said Sen. Dianne Feinstein, D-Calif.

Sen. Joe Lieberman, D-Conn., asked: "Why didn't the administration feel that it could go to the FISA court to get the warrant?"

Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee, introduced a bill calling on Congress to determine whether there are grounds for impeachment – an event that is extremely unlikely in a Republican-controlled Congress.

Democrats called attention to a Bush statement in April 2004 that they said conflicts with what the president is saying now.

"Any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order," Bush said during a speech on the Patriot Act in Buffalo, N.Y. "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

The White House said the president's comments – two years after approving the domestic surveillance program – applied to the kind of roving wiretaps the Patriot Act allows for law enforcement, not eavesdropping for foreign intelligence.

Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Democrats said they were told of the program, but had concerns.

West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee's top Democrat, on Monday released a letter he wrote to Cheney in July 2003 that, given the program's secrecy, he was "unable to fully evaluate, much less endorse these activities."

Senate Intelligence Committee Chairman Pat Roberts, R-Kan., pushed back Tuesday, saying that if Rockefeller had concerns about the program, he could have used the tools he has to wield influence, such as requesting committee or legislative action. "Feigning helplessness is not one of those tools," Roberts said.

Cheney told reporters that in his view, presidential authority has been weakened since the 1970s through laws such as the War Powers Act, which Cheney says infringes on presidential authority.

He said the White House has helped protect presidential power by fighting to keep secret the list of people who were a part of his 2001 energy task force. The task force's activities attracted complaints from environmentalists, who said they were shut out of discussions on developing a national energy policy while corporate interests were present.

"That issue was litigated all the way up to the Supreme Court and we won," Cheney said.

Associated Press writers Nedra Pickler in Oman and Katie Shrader, Liz Sidoti, Elizabeth White in Washington contributed to this report.

That's the impression that the press would like you to have. This is about foreign intelligence. The law that allows the president to electronically eavesdrop via the Department of Defense (NSA) is the Foreign Intelligence Security Act. The law in question has been tested in court and the President's powers in this area affirmed.

We have been monitoring foreign electonic communications since before World War II. Ever heard of Enigma, Ultra? What has changed is the type of war. Rather than intercontinental missiles, we have sleeper cells.

If we discover electronic communication coming from an Al-queda leader to someone in the US, do you want us to ignore that? Spend 72 hours getting a warrant rather than perhaps learn what their imminent plans are?

It really takes very little time to read the actual statute. To be an informed citizen we all should do this.

http://www.law.cornell.edu/donors/solicit.php?http_referer=/uscode/html/uscode50/usc_sec_50_00001801----000-.html.

If you read the definitions (admittedly complex), a US person who knowingly is involved in terrorism is considered an agent and subject to warrantless searches. Hint, this is how US spies like Aldrich Ames are caught. Clinton was quite active in authorizing warrantless electonic eavesdropping I am sure you are aware. Do you recall the name Goerlick discussed frequently as the builder of the wall between domestic and foreign intelligence? Here is what she said in 1994

The (Christian Science) Monitor also quoted former deputy attorney general Jamie Gorelick as being in support of these warrantless searches:

“Jamie Gorelick, deputy attorney general, insisted in a written statement to the House intelligence committee that ‘the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes….’

This morning, I read an excerpt from the NYT that one example of eavesdropping in the US occurred when an Al Queda figure BROUGHT HIS INTERNATIONAL CELL PHONE into the US. Is the eavesdropping now domestic? Does this person deserve the rights of a US citizen just for taking a plane trip to the land of the infidels where he intends to kill them?

You don't like the latitude in the law? Well it was passed by Congress, strengthened at the behest of Bill Clinton. It has been legally reviewed by an appellate court as recently as two years ago. Read the definitions and tell me how else to define the members of sleeper cells of Al Queda.

Funny how quickly people forget the statment of the 911 commission that significant problems remained in securing FISA approval......

http://www.nationalreview.com/york/york200512191334.asp

Why Bush Approved the Wiretaps
Not long ago, both parties agreed the FISA court was a problem.

In the days since the revelation that President Bush authorized the National Security Agency to bypass, in certain cases of suspected al Qaeda activity, the special court set up to provide warrants for national-security wiretaps, the question has come up repeatedly: Why did he do it?

At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently."

But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court — problems examined by members of the September 11 Commission — and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror.

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant. FBI agents became so frustrated that they considered flying Moussaoui to France, where his computer could be examined. But then the attacks came, and it was too late.

Rowley wrote up her concerns in a famous 13-page memo to FBI Director Robert Mueller, and then elaborated on them in testimony to Congress. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002.

The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.

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