By DAVID KRAVETS, Associated Press Writer
Federal agents continue to eavesdrop on Americans' electronic
communications without warrants a year after President Bush confirmed
the practice, and experts say a new Congress' efforts to limit the
program could trigger a constitutional showdown.
High-ranking Democrats set to take control of both chambers are
mulling ways to curb the program Bush secretly authorized a month
after the Sept. 11 attacks. The White House argues the Constitution
gives the president wartime powers to eavesdrop that he wouldn't have
during times of peace.
"As a practical matter, the president can do whatever he wants as long
as he has the capacity and executive branch officials to do it," said
Carl Tobias, a legal scholar at the University of Richmond in
Virginia.
Lawmakers could impeach or withhold funding, or quash judicial
nominations, among other measures.
The president, however, can veto legislation, including a law
demanding the National Security Agency obtain warrants before
monitoring communications. Such a veto would force Congress to muster
a two-thirds vote to override.
"He could take the position he doesn't have to comply with whatever a
new Congress says," said Vikram Amar, a law professor at the
University of California, Hastings, and a former Supreme Court clerk.
Douglas Kmiec, a former Justice Department official under former
presidents Reagan and George H.W. Bush, speculated the younger Bush
would assert executive authority to continue eavesdropping in the face
of new legislation -- perhaps leaving the Supreme Court as the final
arbiter.
"He has as much a constitutional obligation to assert himself, just as
much as Congress does," Kmiec said. "We do need an arbitrator, an
interpreter. That's what the courts, the third branch of government,
was intended to be."
On Dec. 17, 2005, Bush publicly acknowledged for the first time he had
authorized the NSA to monitor, without approval from a judge, phone
calls and e-mails that come into or originate in the U.S. and involve
people the government suspects of having terrorist links.
Bush said he had no intention of halting what he called a "vital tool"
in the war on terror.
When the Republican-controlled Congress adjourned last week, it left
the spying program unchecked.
The next move falls to the Democrats who take control in January and
are considering a proposal to demands Bush get warrants and others
lengthening the time between surveillance and when a warrant must be
obtained.
A spokesman for Sen. Harry Reid (news, bio, voting record), the
incoming Senate majority leader from Nevada, said the eavesdropping
issue "is something he expects to tackle early next year."
"He doesn't believe in giving the president a blank check to listen to
the phone conversations of millions of Americans," spokesman Jim
Manley said.
Jennifer Crider, a spokeswoman for Nancy Pelosi, the San Francisco
Democrat who will become House speaker, said eavesdropping legislation
was under consideration and hearings on the topic were likely early
next year.
Decisions are pending in dozens of lawsuits challenging the program.
The Cincinnati-based 6th U.S. Circuit Court of Appeals, the highest
court squarely confronted with the issue so far, is to hear the
American Civil Liberties Union's challenge Jan. 31. One stop short of
the Supreme Court, the appeals court will review a Detroit judge's
ruling that the program was unconstitutional.
The case is American Civil Liberties Union v. National Security
Agency, 06-2095.
Copyright 2006 The Associated Press.
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David Kravets, AP (ap@telecom-digest.org)