Spying rationale assailed

THE BALTIMORE SUN

WASHINGTON -- As the White House prepared to ratchet up its defense for the National Security Agency to eavesdrop on Americans without court warrants, a small group of House Democrats convened legal experts and advocates in a basement hearing room to poke holes in the administration's legal rationale.

President Bush's argument that he has executive power to authorize such surveillance "flies in the face of both common sense and legal precedent," said Rep. John Conyers Jr., the top Democrat on the House Judiciary Committee, who led the meeting.

"What the president ordered in this case was a crime," George Washington University law professor Jonathan Turley said. "The federal law makes it clear that you cannot engage in this type of operation without committing a crime."

The American Civil Liberties Union filed suit against the NSA over the program this week, saying that it violates the First and Fourth amendments and the separation of powers.

Administration officials, who have staunchly defended the top-secret program since it was disclosed last month, continue to fight back against critics. On Thursday, the Justice Department released a 42-page analysis of the legal underpinnings for warrantless wiretapping. It included the argument that the Foreign Intelligence Surveillance Act, the 1978 law known as FISA that set up the closed court to oversee secret search warrants, might be constitutionally shaky if it curtails the president's power to protect the nation during wartime.

White House officials also have asserted that Bush's power as commander in chief allows him to take actions to protect national security, and that the congressional resolution passed shortly after the Sept. 11, 2001, terrorist attacks further cemented that authority.

The offensive continued yesterday and will escalate next week, with Bush scheduled to visit the NSA's Fort Meade campus Wednesday, and other administration officials scheduled to speak publicly in support of the program.

Gen. Michael V. Hayden, who headed NSA when the spying began, will speak at the National Press Club on Monday. Hayden is now the No. 2 official in the office of the director of national intelligence. Also, Attorney General Alberto R. Gonzales is expected to address the issue Tuesday. Gonzales has agreed to testify before the Senate Judiciary Committee on Feb. 6, when the panel opens hearings on the NSA's activities.

"We are stepping up our efforts to educate the American people about this vital tool in the war on terrorism" in advance of that hearing, said White House press secretary Scott McClellan.

For the second straight day, Vice President Dick Cheney again defended the program in an interview with radio talk-show host Hugh Hewitt.

"We have, we believe, all the authority we need in Article II of the Constitution, the president's authority as commander in chief under the Constitution, as well as previous actions of the Congress, to justify and authorize exactly what we're doing," Cheney said. "I can say for a fact that it's been a very valuable program, that it's saved lives and let us interrupt terrorist operations."

At Conyers' forum, the analysis was decidedly different.

"The implausibility of the president's claim seems to be self-evident," said Bruce Fein, a Washington attorney who worked in the Justice Department during the Reagan administration. "I don't think any more needs to be said about the fact that he is violating FISA."

Democratic lawmakers said the Bush administration had led the country into a "constitutional crisis" and called for both full-scale oversight hearings on the program and an independent investigation into the eavesdropping. The surveillance should be discontinued until those efforts are completed, they added.

Democrats complained that the chairmen of the House Judiciary and Intelligence committees have not responded to calls for hearings on the program. Spokesman for Republican Reps. F. James Sensenbrenner Jr., the chairman of the judiciary panel, and Peter Hoekstra, who leads the intelligence committee, said yesterday that neither man has ruled out the possibility of hearings.

Meantime, Democrats had to make do with yesterday's 2 1/2 -hour affair, which included testimony from a Florida man whose activist group was classified as a "threat" in a Department of Defense database. The surveillance of the Truth Group, based in Lake Worth, Fla., was first reported last month by NBC News.

Asked by New York Rep. Jerrold Nadler whether authorizing the NSA program could meet the definition of "high crimes and misdemeanors" - the classic justification for impeachment - Turley replied, "Frankly, I do."

"If you believe that the president has broken the law," he said, "I don't see how you could possibly say it wouldn't qualify under the impeachment standard."

At a minimum, Turley said, lawmakers are obligated to hold hearings, if only to avoid setting a precedent of staying silent amid questions of whether a president had overstepped the bounds of his power.

"This type of violation should be a textbook example of an impeachment violation," he said.

Fein encouraged a less confrontational approach, saying Congress should offer the administration an opportunity to stop the program and have it authorized through legislation before making a move toward impeachment hearings.

But, he added, Congress should press the White House to make changes, because any power that Bush claims to have during wartime is probably a permanent authority, given the long-term nature of the battle against terrorism.

"The Constitution was based on the principle that 'trust me' isn't good enough," Fein said.

Brian Roehrkasse, a Justice Department spokesman, said the administration has put forward a "sound and detailed" rationale for the program.

gwyneth.shaw@baltsun.com

Sun reporter Siobhan Gorman contributed to this article.

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