The Law Behind NSA Eavesdropping

VPM | By David Welna

Published February 6, 2006 at 4:33 PM EST

Updated July 6, 2023

STEVE INSKEEP, host:

This is the day Attorney General Alberto Gonzales appears before Congress to defend eavesdropping on Americans without a court order. President Bush calls it a terrorist surveillence program, though the Washington Post reports that most people targeted turned out not to be terrorists. The administration says its legal authority to act comes from at least two places. One is the president’s war power under the constitution.

NPR’s David Welna has the background on the other.

DAVID WELNA reporting:

Three days after the 9-11 attacks, Congress passed what’s called an Authorization for the Use of Military Force resolution. It said the President could, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11th, 2001.” It also applied to any groups or persons who harbored those perpetrators, all in the name of preventing future attacks of international terrorism against the United States.

Speaking last month in Kentucky, President Bush cited not only his constitutional powers as Commander In Chief, but also that Congressional Resolution as legal grounds for the warrantless spying program.

President GEORGE W. BUSH: Congress and the authorization, basically, said the President ought to, they, an authorization in the use of troops ought to protect us. Well, one way to protect us is to understand the nature of the enemy. Part of being able to deal with this kind of enemy in a different kind of war is to understand why they’re making the decisions they’re making inside our country.

WELNA: But the Judiciary Committee’s top Democrat, Patrick Leahy, says the Congressional Resolution was all about going after Osama bin Laden.

Senator PATRICK LEAHY (Democrat, Vermont): And now we find the Administration, instead of saying, sorry we didn’t catch Osama bin Laden even though you gave us the authority, we now want to use the authority as legal justification for a covert, illegal spying programs on Americans.

WELNA: And former Democratic Senator Tom Daschle, who was majority leader at the time of the attacks, says the Administration tried and failed to have the resolution cover domestic as well as international actions.

Mr. TOM DASCHLE (Former Senate Majority Leader): They came to us and asked if they could have the authority to take the all necessary actions clause that we had put into the resolution and apply it to the United States as well. We denied it. So, I think that their assertions that they have that authority are just flat wrong.

WELNA: Some Republicans are complaining as well. South Carolina Senator Lindsey Graham recently assured Democrats on the Judiciary Committee that he, too, has questions.

Senator LINDSEY GRAHAM (Republican, South Carolina): I am very concerned that the war resolution is being interpreted overly broad. I think that is a legitimate concern for the Congress to have, and I look forward to working with you.

WELNA: Even as the resolution was being debated three days after the 9-11 attacks, lawmakers such as Massachusetts House Democrat John Tierney insisted that Congress not write the President a blank check.

Senator JOHN TIERNEY (Democrat, Massachusetts): So, while we specifically have not declared war tonight, we do make a law by which the President may engage United States armed forces against others. Congress’s responsibility, I believe, Mr. Speaker, obligate us to remain informed and to have consultation with the President concerning any action under this resolution.

WELNA: But Republican Congressman Henry Hyde of Illinois argued that the resolution should not restrict the President.

Congressman HENRY HYDE (Republican, Illinois): In any other case, I might understand and sympathize with the gentlemen’s interests in keeping the President on a short leash as he goes about exercising the authority we give him tonight. But this is not any other case.

WELNA: Still, because that resolution never spelled out such authority, the debate is bound to continue well beyond today’s hearing.

David Welna, NPR News, the Capital. Transcript provided by NPR, Copyright NPR.

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David Welna

David Welna is NPR's national security correspondent.

Having previously covered Congress over a 13-year period starting in 2001, Welna reported extensively on matters related to national security. He covered the debates on Capitol Hill over authorizing the use of military force prior to the wars in Afghanistan and Iraq, as well as the expansion of government surveillance practices arising from Congress' approval of the USA PATRIOT Act. Welna reported on congressional probes into the use of torture by U.S. officials interrogating terrorism suspects. He also traveled with Defense Secretary Chuck Hagel to Afghanistan on the Pentagon chief's first overseas trip in that post.

As a national security correspondent, Welna has continued covering the overseas travel of Pentagon chiefs who've succeeded Hagel. He has also made regular trips to the U.S. naval base in Guantanamo Bay, Cuba, to provide ongoing coverage of the detention there of alleged "foreign enemy combatants" and the slow-moving prosecution of some of them in an episodically-convened war court. In Washington, he continues to cover national security-related issues being considered by Congress.

In mid-1998, after 16 years of reporting from abroad for NPR, Welna joined NPR's Chicago bureau. During that posting, he reported on a wide range of issues: changes in Midwestern agriculture that threaten the survival of small farms, the personal impact of foreign conflicts and economic crises in the heartland, and efforts to improve public education. His background in Latin America informed his coverage of the saga of Elian Gonzalez both in Miami and in Cuba.

Welna first filed stories for NPR as a freelancer in 1982, based in Buenos Aires. From there, and subsequently from Rio de Janeiro, he covered events throughout South America. In 1995, Welna became the chief of NPR's Mexico bureau.

Additionally, he has reported for the Canadian Broadcasting Corporation, The Financial Times, and The Times of London. Welna's photography has appeared in Esquire, The New York Times, The Paris Review, and The Philadelphia Inquirer.

Covering a wide range of stories in Latin America, Welna chronicled the wrenching 1985 trial of Argentina's former military leaders who presided over the disappearance of tens of thousands of suspected dissidents. In Brazil, he visited a town in Sao Paulo state called Americana where former slaveholders from America relocated after the Civil War. Welna covered the 1992 United Nations Earth Summit in Rio de Janeiro, the deforestation of the Amazon rainforest, the mass exodus of Cubans who fled the island on rafts in 1994, the Zapatista uprising in Chiapas, Mexico, and the U.S. intervention in Haiti to restore Jean Bertrand Aristide to Haiti's presidency.

Welna was honored with the 2011 Everett McKinley Dirksen Award for Distinguished Reporting of Congress, given by the National Press Foundation. In 1995, he was awarded an Overseas Press Club award for his coverage of Haiti. During that same year he was chosen by the Latin American Studies Association to receive their annual award for distinguished coverage of Latin America. Welna was awarded a 1997 Nieman Fellowship at Harvard University. In 2002, Welna was elected by his colleagues to a two-year term as a member of the Executive Committee of the Congressional Radio-Television Correspondents' Galleries.

A native of Minnesota, Welna graduated magna cum laude from Carleton College in Northfield, Minnesota, with a Bachelor of Arts degree and distinction in Latin American Studies. He was subsequently a Thomas J. Watson Foundation fellow. He speaks fluent Spanish, French, and Portuguese.

See stories by David Welna