Domestic Surveillance: Asserting Presidential Power

The president defended his decision to authorize domestic surveillance by the National Security Agency, using the name the administration has recently attached to the controversial program: the "terrorist surveillance program." He echoed the Justice Department's view that federal courts have recognized the president's power to conduct foreign intelligence, and said that previous presidents have used this authority. The president noted, as he has before, that "two of the hijackers in the United States placed telephone calls to al-Qaida operatives overseas. But we did not know about their plans until it was too late," and said the NSA surveillance effort is meant to prevent such oversights in the future.

In fact, the CIA did know that two of the hijackers, Nawaf al-Hazmi and Khalid al-Midhar, attended an al-Qaida meeting in Malaysia in 2000, and then traveled to the United States. But they were not put on terrorist watchlists until they were already in the U.S., and the FBI was not told to look for them until August of 2001. Critics of the adminstration's surveillance programs say that shows that basic incompetence prevented detection of the plot, not inadequate surveillance powers.

In addition, the two men were known to be affiliated with al-Qaida, so the government would have been able to get warrants to monitor their communications from the Foreign Intelligence Surveillance Court. The administration's "terrorism surveillance program" has been attacked because it circumvents this court. While the president repeated the administration's belief that this program is legal, civil liberties groups believe it violates the 1978 law that created the surveillance court. These groups have filed several suits against the program, saying it has chilled free speech even among people who are not sure they were monitored. The Supreme Court has never given a definitive ruling on whether it is legal to conduct warrantless surveillance in this country, if the purpose is gathering foreign intelligence.

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