Cato Institute: Comments on NSA domestic surveillance program

Robert Levy, senior fellow in constitutional studies:
"President Bush has authorized the National Security Agency to eavesdrop, without obtaining a warrant, on telephone calls, emails, and certain other communications between Americans in the United States and persons outside of the United States. He argues that, but for his ability to order such surveillance, he would be severely handicapped in the war on terror. That's plainly an overstatement. First, the president has expansive power outside the United States. Second, the Foreign Intelligence Surveillance Act (FISA), the PATRIOT Act, and other statutes have given him broad leeway within the United States. Third, he has considerable, although not plenary, inherent authority under his power as commander-in-chief. But if Congress has exercised its own authority and expressly prohibited what the president has undertaken, the president’s is bound by the duly enacted statute.
"Attorney General Alberto Gonzales asserts that the president's authority rests on the post-911 Authorization for Use of Military Force and the Commander-in-Chief Clause in Article II of the Constitution. But nothing in the AUMF even mentions wiretaps; it covers the use of force. And the administration’s reliance on the AUMF is contrary to an explicit ban in the FISA statute. Congress, in passing the AUMF, surely did not intend to make compliance with FISA optional. Nor did the 98 senators who authorized force against al Qaeda believe that they were also voting for warrantless domestic surveillance.
"Intercepting enemy communications on the battlefield is clearly an incident of the president’s commander-in-chief power. But warrantless wiretapping of Americans inside the United States who may have nothing to do with Al Qaeda does not qualify as incidental wartime authority. The president’s war powers are broad, but not boundless. The executive branch cannot unilaterally set the rules, execute the rules, and eliminate court review."

Jim Harper, director of information policy studies:
"Dozens and dozens of dangers to Americans' life and health come before terrorism. For the average American, the chance of dying in a terrorist attack is essentially nil. Yet many Americans speak of 'the terrorists' as if they are among us in every mall and on every plane. Some blame for the ongoing fear goes to the unfortunate rhetoric the Bush Administration uses to defend the NSA's domestic surveillance program.
"There is no doubt that the Bush Administration is committed to fighting terrorists. And fair-minded people do not doubt the good faith or intentions of the White House. But domestically, at least, terrorism is not so much the locus of a 'war' as a challenging, but soluble, security dilemma.
"The scope of the Executive power, the meaning of the Authorization for Use of Military Force, and the Fourth Amendment reasonableness of surveillance without a warrant all turn on the Administration's premise that we are in a war on terror. Releasing information about the risk of terrorist attack would allow the Congress and the American people to weigh these arguments intelligently, and perhaps even participate in the protection of their country.
"Yet the Administration holds out secrecy as the cardinal virtue in anti-terrorism efforts. The Administration can not maintain credible arguments in favor of its power while withholding information about the current risk of a domestic terrorist attack."

Timothy Lynch, director of the Project on Criminal Justice:
"The legality of the NSA surveillance program is an important question, but an even more important matter is whether President Bush has made still other decisions, in secret, that will allow the police and military to bypass other laws enacted by the Congress. It is noteworthy that Attorney General Gonzales has declined to answer that fundamental question. The Attorney General's silence is troubling because the White House seems to want to revise or ignore certain laws and then avoid congressional oversight and judicial review of its actions."