NSA Spying Program Debated by Constitutional Experts
By: Administrative Account | Source: CNSNews.com
May 8, 2006 9:49AM EST

By Monisha Bansal
CNSNews.com Staff Writer
May 08, 2006

(CNSNews.com) - National security is more important than privacy, a top constitutional scholar argued Friday in defending President Bush's domestic surveillance program. But another constitutional expert disagreed, insisting that if the president didn't like the legal limitations in place, he should have asked Congress to change the law instead of going ahead and breaking the law.

"The president not only has a right, but the duty to conduct the [National Security Agency] program," said Roger Pilon, director of the Center for Constitutional Studies at the Washington, D.C.-based Cato Institute. "Foreign affairs is an executive issue," he added.

In December, the New York Times disclosed that President Bush had authorized the National Security Agency (NSA) to tap international telephone calls that involved one party suspected of terrorist activity.

Since that time, the program's legality has been debated, especially over whether the president violated the law when he authorized the interception of electronic communications without first obtaining permission from the Federal Intelligence Surveillance Act (FISA) Court.

The FISA Court was created to issue warrants for covert surveillance operations within the U.S.

Pilon argued Friday that wiretapping and other electronic surveillance are simply part of foreign intelligence gathering, calling them "one of the incidents of war."

However, Robert A. Levy, a senior fellow in constitutional studies at the Cato Institute, argued that because President Bush did not seek approval of the FISA Court, he did break the law. If the president didn't like the law, he should have tried to change it, Levy said.

"Much of this program might indeed be necessary and effective. What we want is for the president to obey the law," said Levy. There are "numerous cases of reasonable, warrant-less searches," and the NSA program "might have been justifiable if Congress had not expressly disapproved, which they did with the FISA Court," he added.

"The president must comply with statutes unless he can show Congress overstepped its authority," said Levy, adding that "the burden of proof is on the president and he has not provided any proof at all."

U.S. Sen. Russ Feingold (D-Wis.), who believes that Bush overstepped his bounds, proposed in March that Congress censure the president. "The president must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality," Feingold said at the time.

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