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Behind Power, One Principle as Bush Pushes Prerogatives

A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency. From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts. With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said. The administration's legal experts, including David S. Addington, the vice president's former counsel and now his chief of staff, and John C. Yoo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority. The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of the powers. Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks....

Pushing the Limits Of Wartime Powers

In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s. The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress. Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978. Defiant in the face of criticism, the Bush administration has portrayed each surveillance initiative as a defense of American freedom. Bush said yesterday that his NSA eavesdropping directives were "critical to saving American lives" and "consistent with U.S. law and the Constitution." After years of portraying an offensive waged largely overseas, Bush justified the internal surveillance with new emphasis on "the home front" and the need to hunt down "terrorists here at home." Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power....

In Speech, Bush Says He Ordered Domestic Spying

President Bush acknowledged on Saturday that he had ordered the National Security Agency to conduct an electronic eavesdropping program in the United States without first obtaining warrants, and said he would continue the highly classified program because it was "a vital tool in our war against the terrorists." In an unusual step, Mr. Bush delivered a live weekly radio address from the White House in which he defended his action as "fully consistent with my constitutional responsibilities and authorities." He also lashed out at senators - both Democrats and Republicans - who voted on Friday to block the reauthorization of the USA Patriot Act, which expanded the president's power to conduct surveillance, with warrants, in the aftermath of the Sept. 11 attacks. The revelation that Mr. Bush had secretly instructed the security agency to intercept the communications of Americans and suspected terrorists inside the United States, without first obtaining warrants from a secret court that oversees intelligence matters, was cited by several senators as a reason for their vote. "In the war on terror, we cannot afford to be without this law for a single moment," Mr. Bush said forcefully from behind a lectern in the Roosevelt Room, next to the Oval Office. The White House invited cameras in, guaranteeing television coverage. He said the Senate's action "endangers the lives of our citizens," and added that "the terrorist threat to our country will not expire in two weeks," a reference to the approaching deadline of Dec. 31, when critical provisions of the current law will end. His statement came just a day before he is scheduled to make a rare Oval Office address to the nation, at 9 p.m. Eastern time on Sunday, celebrating the Iraqi elections and describing what his press secretary on Saturday called the "path forward."....

Congress seeks answers about spying on citizens

Members of Congress demanded Friday that President Bush and his administration explain his decision to permit the country's most secretive intelligence agency to spy on American citizens in the United States after the Sept. 11 terrorist attacks without first obtaining warrants. Democrats and some Republicans denounced the administration's action, describing it as another example of Bush's use of the threat of terrorism to assume new legal and intelligence powers and limit civil liberties. Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, said he would call congressional hearings. Warrantless surveillance of U.S. citizens is "wrong, and it can't be condoned at all," he said. In 2002, according to former officials familiar with the policy, Bush signed an executive order granting new surveillance powers to the National Security Agency, which is responsible for international eavesdropping and whose very existence was long denied by the government. Trying to quickly contain the controversy, Vice President Dick Cheney went to Capitol Hill to confer with the leaders of both chambers as well as the chairman and top Democrat on the intelligence committees. Those present refused to discuss the session. Specter said he wanted to know details of the eavesdropping: "How NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was... and we will go from there."....

Eavesdropping Effort Began Soon After Sept. 11 Attacks

The National Security Agency first began to conduct warrantless eavesdropping on telephone calls and e-mail messages between the United States and Afghanistan months before President Bush officially authorized a broader version of the agency's special domestic collection program, according to current and former government officials. The security agency surveillance of telecommunications between the United States and Afghanistan began in the immediate aftermath of the Sept. 11, 2001, attacks on New York and Washington, the officials said. The agency operation included eavesdropping on communications between Americans and other individuals in the United States and people in Afghanistan without the court-approved search warrants that are normally required for such domestic intelligence activities. On Saturday, President Bush confirmed the existence of the security agency's domestic intelligence collection program and defended it, saying it had been instrumental in disrupting terrorist cells in America. After the Sept. 11 attacks, the Bush administration and senior American intelligence officials quickly decided that existing laws and regulations restricting the government's ability to monitor American communications were too rigid to permit quick and flexible access to international calls and e-mail traffic involving terrorism suspects. Bush administration officials also believed that the intelligence community, including the Central Intelligence Agency and the N.S.A., had been too risk-averse before the attacks and had missed opportunities to prevent them. In the early years of the operation, there were few, if any, controls placed on the activity by anyone outside the security agency, officials say. It was not until 2004, when several officials raised concerns about its legality, that the Justice Department conducted its first audit of the operation. Security agency officials had been given the power to select the people they would single out for eavesdropping inside the United States without getting approval for each case from the White House or the Justice Department, the officials said. While the monitoring program was conducted without court-approved warrants, senior Bush administration officials said the far-reaching decision to move ahead with the program was justified by the pressing need to identify whether any remaining "sleeper cells" were still operating within the United States after the Sept. 11 attacks and whether they were planning "follow-on attacks."....

Justices Are Urged to Dismiss Padilla Case

It would be "wholly imprudent" for the Supreme Court to hear Jose Padilla's challenge to his military detention as an enemy combatant, the Bush administration told the court in urging the justices to dismiss Mr. Padilla's case as moot now that the government plans to try him on terrorism charges in a civilian court. In a brief filed late Friday, the administration argued that Mr. Padilla's indictment last month by a federal grand jury has given him the "very relief" he sought when he filed a petition for writ of habeas corpus in federal court. Any Supreme Court decision now on his petition, which a federal appeals court rejected in September, "will have no practical effect" on Mr. Padilla, the brief said. Lawyers for Mr. Padilla, a United States citizen who was arrested at O'Hare airport in Chicago in May 2002 and transferred to military custody, filed his Supreme Court appeal in October. Ordinarily, the court would have acted by now, but the justices gave the government until Friday to file its response. Mr. Padilla's lawyers will now have a chance to respond to the administration's brief before the court decides early next year whether to hear the case. As the administration filed its Supreme Court brief, Mr. Padilla's five-member legal team filed a brief with the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., asking that court to keep jurisdiction over Mr. Padilla's case long enough for the Supreme Court to act on it. For its part, the administration is urging the Fourth Circuit to do just the opposite: to vacate its September decision that upheld presidential authority to keep Mr. Padilla in open-ended detention and to "recall the mandate," depriving the decision of any legal force. Since the Fourth Circuit had handed the administration a sweeping victory in that decision, the request would seem to run counter to the administration's interests. But the request, if granted, would have the effect of ensuring that the Supreme Court would be unable to review Mr. Padilla's case because there would be no decision to review. That amounts to "the extraordinary action of interfering with the Supreme Court's consideration of the case" while Mr. Padilla's appeal is pending, his lawyers told the Fourth Circuit. The government should not be allowed to claim the case is moot, the brief said, because the administration has not withdrawn Mr. Padilla's designation as an enemy combatant and has refused to foreclose the prospect of sending him back to military detention if he is acquitted in a civilian trial. The lawyers told the Fourth Circuit that in its treatment of Mr. Padilla, "the government has repeatedly altered its factual allegations to suit its goals, and it has actively manipulated the federal courts to avoid accountability for its actions."....