A Justice Department memo written in 2003 may call into question the legal rationale the Bush administration has offered to justify electronic surveillance of Americans without court review.
Some critics of the ongoing National Security Agency (NSA) wiretapping program believe the 2003 memo undermines the position President Bush is taking today. The memo describes legislation drafted by Justice Department staff to expand surveillance powers under the Foreign Intelligence Surveillance Act (FISA).
Critics say it is hard to understand why Justice Department attorneys felt this change was needed, if, as the administration now claims, it had even broader authority and could avoid judicial review. In recent days, the administration has said the inherent constitutional powers of the president and the congressional authorization of military force against al Qaeda gave President Bush the authority he needed to circumvent the court.
The memo and proposed Domestic Security Enhancement Act of 2003, dubbed "Patriot II," were first obtained and posted on the Center for Public Integrity website in February 2003.
A public firestorm
Once made public, the proposal raised a firestorm of criticism among civil liberties advocates. They were concerned about attempts to broaden the government's powers over domestic intelligence gathering, and to decrease judicial review and public access to information.
Following its disclosure, the executive branch dropped consideration of "Patriot II," and never presented it to Congress. However, pieces were later considered and passed.
One "Patriot II" provision, which never passed, would have sought expanded wartime powers for the Attorney General. Under the heading, "Section 103. Strengthening Wartime Authorities Under FISA," the memo explains that current law authorizes surveillance for 15 days without court approval, once Congress has declared war.
But as formally declared wars are rare, the most recent being World War II, the Justice Department memo concludes, "this wartime exception is unnecessarily narrow." The proposed law sought to broaden powers "by allowing the wartime exception to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating a national emergency."
"After-the-fact rationalization..."
Georgetown law professor David Cole, a critic of the NSA surveillance program, says this 2003 draft is evidence that the government's current argument "is in fact an after-the-fact rationalization, and not one that the administration held when the president secretly authorized the NSA warrantless wiretapping now at issue."
The Republican staff director and chief counsel for the Senate Select Committee on Intelligence, William Duhnke, disagrees. He says proposed legislation such as "Patriot II" cannot be read as a concession that the president lacks certain powers.
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