Executive Power and the Issue of Eavesdropping
Dick Cheney was just 11 during the Korean War when Harry Truman, worried that a looming strike would cripple the nation, invoked his emergency powers as commander in chief and ordered the nation's steel plants put under government control. The Supreme Court disagreed, ruling that the president had overstepped his authority.
The 1952 case has come up repeatedly in recent weeks, as the Bush administration faces growing concern over its own exercise of executive power, a push championed by Cheney. Among the issues are the White House's endorsement of secret prisons, detention without trial, brutal interrogation techniques for terrorism suspects, and eavesdropping on Americans without warrants.
Limits. The steel-mill case was cited last week in a report by Congressional Research Service legal experts. They found the president's authority to conduct warrantless surveillance to be on dubious ground. The case came up again during Senate questioning of Supreme Court nominee Samuel Alito. In a 1984 memo he drafted while a Reagan administration lawyer, Alito backed immunity for officials who approved domestic wiretaps without warrants. In his testimony, Alito declined to say whether he thought the president had authority to order such eavesdropping but conceded that there are limits to executive power. "The Bill of Rights," he told senators, "applies at all times."
Behind the latest controversy is the National Security Agency, the high-tech spy shop that monitors international communications. Enacted in response to past NSA abuses, the 1978 Foreign Intelligence Surveillance Act created a secret court to vet national security eavesdropping within the United States. After 9/11, the NSA--with White House backing--began monitoring phone calls and E-mails of hundreds, and perhaps thousands, of Americans without court review.
The eavesdropping story, broken by the New York Times, has generated lots of sparks. From the president on down, administration officials have been vocal in support of the program, as have critics in denouncing it. One FISA court judge has resigned in protest, the Justice Department has launched a leak investigation, and the NSA's inspector general is reviewing the program. Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee, plans hearings and has called for Attorney General Alberto Gonzales to appear. Defense lawyers in terrorism cases, meanwhile, want to know if their clients were wiretapped by the NSA; if it turns out that prosecutors failed to turn over such evidence, those cases could be thrown out of court.
The public, for its part, seems split on the issue. Two polls released last week found clear majorities who believe the war on terrorism is intruding on civil liberties, including 56 percent in an AP-Ipsos survey who want the government to obtain warrants before eavesdropping. But asked to pick between protecting privacy and investigating terrorism, the choice was clear in a Washington Post-ABC News survey--two thirds want the government to make chasing terrorists a priority.
This story appears in the January 23, 2006 print edition of U.S. News & World Report.