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Court ruling raises new legal questions over Bush’s domestic spying program

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July 1, 2006


A Supreme Court ruling striking down military commissions seriously weakens the foundation of the Bush administration’s domestic surveillance program, critics said Friday.

A congressional resolution President Bush relied on in creating commissions is a key rationale for the National Security Agency to listen in on phone calls without first obtaining a judge’s permission.

The court “reinforces our view that the NSA operation was unlawful,” said George Washington University law professor Jonathan Turley. “The Supreme Court cut away the administration’s principal legal argument for the NSA operation _ the congressional resolution following Sept. 11.”

Enacted a week after the Sept. 11 attacks, the congressional Authorization for Use of Military Force resolution cannot be seen as authorization for military commissions, the court ruled.

In January, the Justice Department invoked the resolution 92 times in a 42-page paper designed to quell the outcry that the White House had broken the law with its program of warrantless surveillance. A centerpiece in the administration’s counter-attack against its critics, the DOJ entitled the white paper “Legal Authorities Supporting the Activities of the National Security Agency Described By the President.”

Asked about the NSA program, a Justice Department official said after the ruling that “I don’t think the court had before it any other broader issues concerning the scope of the Authorization for Use of Military Force, except it clearly did recognize that it activated the president’s war powers.”

The official said the implications of the decision beyond military commissions is “something that we are studying and will be studying.” The official spoke on condition of anonymity because the matter is under review.

In the aftermath of the high court’s ruling, lawyers for the Bush administration asked a federal appeals court in Washington to order more briefing on the decision’s effect on civil lawsuits filed on behalf of hundreds of detainees held at the military prison at Guantanamo Bay, Cuba.

The NSA program faces a court challenge and the Supreme Court ruling “gives new vigor to arguments that the administration does not have the power it says it has,” said Anthony Romero, executive director of the American Civil Liberties Union.

Romero said the language in Justice Anthony Kennedy’s concurring opinion against military commissions “almost could have been speaking about the NSA litigation,” providing useful material for the ACLU’s lawsuit against the warrantless surveillance.

In the military commission case, the Supreme Court said the congressional resolution was insufficient.

The Authorization for Use of Military Force resolution says that “the president is authorized to use all necessary and appropriate force” to prevent future acts of international terrorism against the United States.

In Thursday’s ruling Justice Kennedy wrote that “trial by military commission raises separation-of-powers concerns of the highest order.”

“Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review,” Kennedy added.

It was the absence of any review that fueled the outrage against the Bush administration’s warrantless surveillance.

The White House decided not to obtain orders from the Foreign Intelligence Surveillance Court before eavesdropping on phone calls.

The Supreme Court setback for the White House comes amid a full frontal assault by the administration against The New York Times for revealing the existence of the NSA program as well as another secret government initiative accessing a huge databank of bank records.

The American Society of Newspaper Editors, responding to such criticism, said Friday that the Bush administration and some in Congress “are threatening America’s bedrock values of free speech and free press with their attempts to demonize newspapers for fulfilling their constitutional role in our democratic society.”

The ASNE said newspaper editors don’t claim to be infallible. “However, the First Amendment makes it clear no person or branch of government has the prerogative to usurp any American’s right to speak or print what he or she believes is important and relevant truth. We believe honorable debate would focus on the issues raised by the reporting, not on attacks on the truth-tellers,” it said.

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On the Net:

Supreme Court: http://www.supremecourtus.gov/

Justice Department white paper:

http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf

ASNE: http://www.asne.org/

© 2006 The Associated Press