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The Law Behind NSA Eavesdropping

STEVE INSKEEP, host:

This is the day Attorney General Alberto Gonzales appears before Congress to defend eavesdropping on Americans without a court order. President Bush calls it a terrorist surveillence program, though the Washington Post reports that most people targeted turned out not to be terrorists. The administration says its legal authority to act comes from at least two places. One is the president's war power under the constitution.

NPR's David Welna has the background on the other.

DAVID WELNA reporting:

Three days after the 9-11 attacks, Congress passed what's called an Authorization for the Use of Military Force resolution. It said the President could, quote, "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11th, 2001." It also applied to any groups or persons who harbored those perpetrators, all in the name of preventing future attacks of international terrorism against the United States.

Speaking last month in Kentucky, President Bush cited not only his constitutional powers as Commander In Chief, but also that Congressional Resolution as legal grounds for the warrantless spying program.

President GEORGE W. BUSH: Congress and the authorization, basically, said the President ought to, they, an authorization in the use of troops ought to protect us. Well, one way to protect us is to understand the nature of the enemy. Part of being able to deal with this kind of enemy in a different kind of war is to understand why they're making the decisions they're making inside our country.

WELNA: But the Judiciary Committee's top Democrat, Patrick Leahy, says the Congressional Resolution was all about going after Osama bin Laden.

Senator PATRICK LEAHY (Democrat, Vermont): And now we find the Administration, instead of saying, sorry we didn't catch Osama bin Laden even though you gave us the authority, we now want to use the authority as legal justification for a covert, illegal spying programs on Americans.

WELNA: And former Democratic Senator Tom Daschle, who was majority leader at the time of the attacks, says the Administration tried and failed to have the resolution cover domestic as well as international actions.

Mr. TOM DASCHLE (Former Senate Majority Leader): They came to us and asked if they could have the authority to take the all necessary actions clause that we had put into the resolution and apply it to the United States as well. We denied it. So, I think that their assertions that they have that authority are just flat wrong.

WELNA: Some Republicans are complaining as well. South Carolina Senator Lindsey Graham recently assured Democrats on the Judiciary Committee that he, too, has questions.

Senator LINDSEY GRAHAM (Republican, South Carolina): I am very concerned that the war resolution is being interpreted overly broad. I think that is a legitimate concern for the Congress to have, and I look forward to working with you.

WELNA: Even as the resolution was being debated three days after the 9-11 attacks, lawmakers such as Massachusetts House Democrat John Tierney insisted that Congress not write the President a blank check.

Senator JOHN TIERNEY (Democrat, Massachusetts): So, while we specifically have not declared war tonight, we do make a law by which the President may engage United States armed forces against others. Congress's responsibility, I believe, Mr. Speaker, obligate us to remain informed and to have consultation with the President concerning any action under this resolution.

WELNA: But Republican Congressman Henry Hyde of Illinois argued that the resolution should not restrict the President.

Congressman HENRY HYDE (Republican, Illinois): In any other case, I might understand and sympathize with the gentlemen's interests in keeping the President on a short leash as he goes about exercising the authority we give him tonight. But this is not any other case.

WELNA: Still, because that resolution never spelled out such authority, the debate is bound to continue well beyond today's hearing.

David Welna, NPR News, the Capital. Transcript provided by NPR, Copyright NPR.

David Welna is NPR's national security correspondent.