Experts to discuss legality of domestic surveillance
Tuesday, February 28, 2006

The U.S. Senate Judiciary Committee will hear today from constitutional law experts on the legality of the Bush administration's domestic surveillance program, against the backdrop of a Democratic call for a special prosecutor and a proposal from Chairman Arlen Specter to adopt new rules to allow the program with regular review.

President Bush believes the National Security Agency's efforts to curb terrorism by eavesdropping on communications between potential foreign terrorists and U.S. residents is legal and a necessary power for the commander in chief to protect the country. Critics say it is unconstitutional to eavesdrop on people in the United States without court approval.

The Judiciary Committee will hold its second day of testimony today into the administration's covert actions. Ken Gormley, a constitutional law expert at Duquesne University Law School, will be among six legal experts and a former Central Intelligence Agency director who will testify.

In an interview, Mr. Gormley said this is "an extremely important issue" dealing with the power of the presidency, not unlike former President Harry S. Truman's attempt to block a strike by steel workers because he considered it a threat to national security during the Korean War. Mr. Truman received a public rebuke by Congress and the courts that Mr. Gormley believes undermined the remainder of his term.

In this instance, Mr. Gormley said, it is clear to him that Mr. Bush's actions are well-intentioned but don't pass constitutional muster. Even in times of national emergency, he said, the president must follow the Constitution on domestic issues, which means it would be a violation of privacy rights to spy on U.S. residents without court approval.

"I think there is grave concern" about the balance of power among the executive, judicial and legislative branches if Mr. Bush is allowed to proceed unchecked, Mr. Gormley said.

"If you let one branch usurp power, you may never get [the checks and balances] back."

To avoid a constitutional showdown, Mr. Gormley in his testimony will recommend legal changes to allow the president to fight terrorists with the appropriate checks and balances from Congress and the courts.

Specifically, Mr. Gormley will recommend allowing domestic surveillance with the approval of the Foreign Intelligence Surveillance Court, established in 1978 to oversee foreign intelligence. With the approval of a congressional oversight committee, the names of U.S. residents who were cleared of terrorist involvement could be released so that individuals would know they had been investigated and could challenge the investigation.

"What I don't want to see is any procedure that would gut the Fourth Amendment [right to privacy] and allow the government to do anything it wants," he said. In previous times of crisis, he said, Congress and the courts always have limited the domestic powers of the president.

Mr. Gormley said his approach would be similar to a proposal by Mr. Specter, R-Pa. His proposal would require the Justice Department to ask the FISA Court every 45 days to renew its power to conduct domestic surveillance, based on reasonable suspicion someone is involved in terrorist activity.

Mr. Gormley called the proposal "a great start" because it would inject judicial oversight into the process.

"It's trying to give the Bush administration the power it needs to fight the war on terror without circumventing the Constitution," he said.

On the other hand, Mr. Gormley called the effort by 18 House Democrats to have a special prosecutor appointed to investigate whether the White House broke any laws an "overreaction." Any specific violations should be investigated, he said, but it would be better to devise a method to bring the program under constitutional provisions than to create a sharp political division that could delay addressing the situation.

Others scheduled to testify today are former CIA Director James Woolsey; Harold Koh, dean of the Yale University Law School; Doug Kmiec of the Pepperdine University Law School; Robert Turner of the Center for National Security Law in Virginia; Robert Levy of the Cato Institute; and Bruce Fein, a constitutional law expert in Washington, D.C.

First published on February 28, 2006 at 12:00 am
Ed Blazina can be reached at or 412-263-1470.
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