Has Bush Gone Too Far?

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More broadly, the White House says Congress implicitly gave Bush the power to approve the no-warrant wiretaps in a resolution it passed on Sept. 14, 2001. That measure authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons" involved in the 9/11 attacks. Tom Daschle, then the Senate Democratic majority leader, says the Administration knows it did not have that implicit authority because White House officials had sought unsuccessfully to get congressional leaders to include explicit language approving no-warrant wiretaps in the resolution. Attorney General Gonzales says the Administration decided to go forward with the program anyway because it was convinced that the President possessed the inherent power to act.

The Administration likes to stress that congressional leaders were briefed about the new program from the start. But some of them object that they were told about it under ground rules that made it impossible for them to mount any opposition. Daschle tells TIME that he, House Speaker Dennis Hastert and Dick Gephardt, then House minority leader, were briefed in early 2002 by Cheney. There was a second briefing in 2004. "A couple of us expressed our concerns," Daschle says. "But the information we were given was more technical and less substantive. We were told we were being informed and not consulted." Within the intelligence community, officials knew that legal justifications for the spying were subject to challenge. At the NSA, says a former senior intelligence official, "there was apprehension, uncertainty in the minds of many about whether or not the President did have that constitutional or statutory authority."

In a press conference last month after the NSA program came to light, Gonzales cited last year's Supreme Court ruling in Hamdi v. Rumsfeld as another implicit sanction of the presidential power to okay wiretaps. In that decision, the Justices upheld the detention, without charges, of U.S. citizen Yaser Esam Hamdi, whose designation as an enemy combatant was challenged by his lawyers. The court ruled that his detention was lawful because the "necessary force" provisions of the Sept. 14 resolution gave the President the power to engage in all "fundamental incidents" of war. "Even though signals intelligence is not mentioned in the authorization of force," Gonzales said, "we believe the court would apply the same reasoning to ... this kind of electronic surveillance."

It remains to be seen whether the court would make no distinction between imprisoning a suspected terrorist and spying at home. The Bush Administration's legal tactics, given wide berth initially by the courts, have begun running into trouble. In its Hamdi ruling, the Supreme Court also challenged the Administration's policy of depriving suspected terrorists designated enemy combatants of any legal review. The court ordered the government to develop a process that would allow the more than 600 enemy combatants at the U.S. naval base at Guantánamo Bay, Cuba, to challenge their detention.