Constitutional battle looms over Bush’s spying

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.

A spokesman for Sen. Harry Reid, the incoming Senate majority leader from Nevada, said the eavesdropping issue "is something he expects to tackle early next year."

"He doesn’t believe in giving the president a blank check to listen to the phone conversations of millions of Americans," spokesman Jim Manley said.

Jennifer Crider, a spokeswoman for Nancy Pelosi, the San Francisco Democrat who will become House speaker, said eavesdropping legislation was under consideration and hearings on the topic were likely early next year.

Decisions are pending in dozens of lawsuits challenging the program.

The Cincinnati-based 6th U.S. Circuit Court of Appeals, the highest court squarely confronted with the issue so far, is to hear the American Civil Liberties Union’s challenge Jan. 31. One stop short of the Supreme Court, the appeals court will review a Detroit judge’s ruling that the program was unconstitutional.

The case is American Civil Liberties Union v. National Security Agency, 06-2095.

Copyright © 2006 The Associated Press


  1. Fred P

    I did not vote for George W. Bush in 2000, largely due to his human rights and foreign policy positions in comparison with Al Gore.

    I did cheer on the invasion of Afghanistan; for that matter I still support it. I disagreed with the attempted sale of the Iraq war, largely because I felt that the reasons given were fraudulent. I was not worried about the diversion of resources from Afghanistan – that came months after the war started. However, I did little if anything to actively oppose the war; for example, I doubt that I wrote my congressperson or senators on the subject.

    I guess that I also should note that I was under the belief that the post-war phase would be executed far more competently (and smoothly) than it was; at the time, I expected that there would be a much lower level of occupation by this late date, and much lower levels of violence (maybe 3% of what we are actually experiencing). I was also woefully undereducated about Iraq in general.

  2. Fred P


    Article 1, section 10 are the powers prohibited of States. Essentially, it’s stating that New Hampshire (for example) can’t engage in war (by itself) unless either under invasion or in imminent danger of invasion. I think that the federal power to declare war is from Article I, section 8: “The Congress shall have Power …To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”

    In any event, I view both Bush’s and Gonzalez’s crimes rising to sufficient level to impeach. My view is that Cheney’s actions need more investigation before determining whether or not to impeach. This is likely because I view the FISA violations to be graver than inciting Congress to war through false testimony; my view is that Congress should have used alternative sources of information to verify or deny the administrations’ claims. Had they done such due diligence, they likely would have found the claims to be flimsy. In other words, in my view, those congresspeople that voted for the Iraq war should share the blame with the present administration for that war.

  3. Ed

    When I read these comments, I wonder how many of their authors have voted for GWB in 1999 and in 2003/3 were shouting “Hurray, we’re going to war!” Almost all of this misery would have been avoided if the US citizens would have taken the trouble to get at least some objective information; what is the internet for but to read also non-US opinions?

  4. marti oakley

    The Ultimate Betrayal!

    Dems got in and immediately Pelosi says impeachment is off the table.

    John Conyers who is now head of the Judiciary committee and who promised impeachment and subpeonas to investigate………now says neither thing will happen.

    And most ironic of all: The very people we elected to change things……are going to pass Bush’s Amnesty plan. Harry Reid who railed against illegal immigrants in the past suddenly has had a poltical epiphany…amnesty is a good thing he says.

    I wrote Conyers, but I wont waste my time on pelosi. Sellouts,and liars all of them.

    Marti Oakley

  5. storky


    I would argue that the Invasion does indeed violate the Constitution.

    Article 1, section 10 of the Constitiution states “No State shall . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    Bush’s claims of grave danger and imminent threat stood in stark contradiction to weapon inspector’s direct observations from within the facilities suspected of storing, production and/or researching and development of WMD. The Administration propagated many multifaceted frauds on the American people.

    IMPEACH them! NOW!

  6. Fred P


    He violated multiple ratified international treaties (including the one you identify). For that matter, I go further, and state that it was a jus cogens matter (therefore the signature or ratification of those portions of those treaties is irrelevant). There is no coherent defense that I’m aware of for the invasion under the UN Charter, and that makes the invasion of Iraq illegal.

    That does not, however, make that invasion unconstitutional; treaties, while the highest law of the land, are under the Constitution (treaties supersede federal law, the Constitution supersedes treaties). I think that the only argument I can come up with that it was unconstitutional is that some people argue that the lack of a formal declaration of war by Congress makes said war unconstitutional. As the last war that I’m aware of that we formally declared was World War II, that would make a lot of executives in the past 60 years rather impeachable. I think that the reason that Congress doesn’t declare war is to attempt to retain more power, not to prevent the exercise of offensive military force.

    In any case, I agree with you as to impeaching Bush. I think I agree with you for impeaching Gonzalez (I don’t think of impeaching him, but he substantially facilitated multiple counts of breaching the Geneva Conventions, as well as the Habeas Corpus clause of the U.S. Constitution). The problem I have with impeaching Cheney is that his official powers are very tiny; I think I’d need more evidence that he (himself) committed criminal acts or at least consistently had contempt for Congress (i.e. repeatedly and deliberately lied to Congress) to agree with you on his impeachment.

  7. storky


    Article 6 of the U.S. Constitution states that “all treaties made . . . under the authority of the United States, shall be the supreme law of the land,” federal law. As a charter, permanent and founding member of the United Nations, the US is bound by International Law which are in fact a collection of treaties negotiated under the authority of the United States.

    The Invasion of Iraq violated articles 39-50 of the UN Charter and UN resolution 1441 which authorized weapon inspections but no other activities. Even if WMD had been discovered, UNSCR 1441 required reconvening the United Nations Security Council to determine the response – it did not, under ANY interpretation, authorize the use of force.

    This is meerely the tip of the iceberg in the long list of criminal activities engaged in by GWB and company any one of which qualifies as an impeachable offense. Only the complicity of the Congress and the abdication of their oversight authority permitted this criminal activity to thrive.

    IMPEACH Bush, Cheney and Gonzalez now! The Bush administration has frequently admitted to many violations the most obvious of which was the illegal wiretapping of AMERICAN CITIZENS!

  8. Fred P

    @storky- “Prosecuting the Invasion of Iraq was unconstitutional and illegal.”

    Could you expand on this? To me, it appears to be a treaty violation, as well as a violation of jus cogens international law, and therefore illegal (as well as under the purview of the ICC, even for a nation that refused to ratify the treaty), but I’m failing to note the unconstitutionality of it.

    I agree with the rest of your comment.

  9. J.W.