CNN's David Ensor reported that the upcoming Senate Judiciary Committee hearings on President Bush's warrantless domestic surveillance program are being held to determine "whether the law should be changed to require court approval of all domestic surveillance." In fact, the purpose of the hearings, as described by the committee chairman, is to determine whether the president had the constitutional authority to ignore the law.
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On the January 23 edition of CNN's The Situation Room, CNN national security correspondent David Ensor reported that the upcoming Senate Judiciary Committee hearings on President Bush's warrantless domestic surveillance program are being held to determine "whether the law should be changed to require court approval of all domestic surveillance." In fact, the purpose of the hearings, as described by the committee chairman, is not to consider changes to the law requiring warrants for such surveillance, but to determine whether the president has the constitutional authority to ignore the law, as defenders of the program have repeatedly argued.
In a report on Bush's January 23 speech defending his authorization of the National Security Agency (NSA) to conduct warrantless domestic surveillance, Ensor informed viewers that the Senate hearings will address whether the law governing such surveillance -- the Foreign Intelligence Surveillance Act (FISA) -- "should be changed" to accommodate these activities:
ENSOR: The administration faces hearings early next month on whether the law should be changed to require court approval of all domestic surveillance. But administration officials believing the program is actually a political asset are now aggressively promoting it as part of the war on terror.
But, contrary to Ensor's suggestion, the issue raised by the NSA's warrantless surveillance program isn't whether FISA "should be changed to require court approval of all domestic surveillance." The administration has all but admitted that FISA already prohibits the warrantless surveillance that the president has authorized. For example, in a January 23 talk he gave at the National Press Club in Washington, D.C., principal deputy director of national intelligence and former NSA director Gen. Michael V. Hayden stated that the president's authorization of the domestic wiretapping program pre-empted FISA:
HAYDEN: In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. ... There is an operational impact here, and I have two paths in front of me, both of them lawful: one FISA, one ... the president's authorization. And we go down this path because our operational judgment is -- it is much more effective.
Since the public disclosure of the program in December 2005, the Bush administration has repeatedly asserted its legal authority to carry out domestic surveillance without obtaining warrants pursuant to FISA. The White House's defense was most recently articulated in a Department of Justice (DOJ) "white paper" released on January 19. In the paper, the DOJ put forth a two-pronged argument: the program was authorized by the Authorization of Military Force passed by Congress on September 18, 2001; and "the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework." It is that assertion of authority -- as Judiciary Committee chairman Arlen Specter (R-PA) has indicated -- that will be the focus of the hearings. On the January 8 edition of CBS's Face the Nation, Specter said:
SPECTER: We will not be going in to the secrets as to what has been undertaken, but the legal basis: whether the resolution authorizing the use of force included the authority to eavesdrop without a warrant.
On December 16, 2005, the same day The New York Times published the initial article on the surveillance program, Specter "put the Bush administration on notice" that the Judiciary Committee would hold hearings on the issue. On December 18, he met with Attorney General Alberto Gonzales to discuss the White House's legal rationale for the NSA program. Afterward, Specter stated that he had "grave doubts" about the legal basis put forth by Gonzales and renewed his pledge to conduct hearings on the matter in early 2006, as a December 22 Associated Press article reported.
Furthermore, shortly after Ensor's January 23 report, Specter again made clear that the hearings would primarily explore the question of legal authority during an interview with Situation Room host Wolf Blitzer:
BLITZER: You are going to hold hearings on this very subject next month. What is your sense, going into this? You have expressed some initial concern. Where do you stand? Does the president have the legal authority to do what he has ordered?
SPECTER: Wolf, that's the question we are going to explore at a hearing. The initial claim to authority from the resolution to authorize the use of force, I think, is very, very thin. If the president had asked for authority in the [USA] Patriot Act, we would have had a determination as to whether Congress wanted to give it to him. But to say that there was congressional intent in the resolution for force, I think, is a stretch. It's a different issue under Article II, but where you have the Congress using our power, under Article I, to say that the exclusive way to have electronic surveillance is to get a court order, the presumption is against the president. But I think we have to give him a hearing.
Nonetheless, during a separate edition of The Situation Room that aired later that evening, Ensor again reported: "The administration faces hearings early next month on whether the law should be changed or require approval of all domestic surveillance."