News Release

December 21, 2005

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Bush's NSA Actions Make a Mockery of Separation of Powers
Legal expert says President overstepped his constitutional authority

WASHINGTON -- President Bush has acknowledged the existence of a secret program that allows the NSA to eavesdrop on phone and email conversations of American citizens, in the U.S., without a court warrant.

Robert Levy, Cato's senior fellow in constitutional studies, is available to discuss the president's actions.

"The executive order is, according to Mr. Bush, based on classified legal opinions stating that the president's authority derives from his Commander-in-Chief power and the post-911 congressional authorization for the use of military force against Al Qaeda. That pernicious rationale, carried to its logical extreme, renders the PATRIOT Act unnecessary and trumps any dispute over its reauthorization. Indeed, such a policy makes a mockery of the principle of separation of powers.

"Notably, the standard of proof required to obtain a warrant under the Foreign Intelligence Surveillance Act is probable cause that someone may be an agent of a foreign power, which includes international terrorist groups. That standard is far below the usual criminal-law requirement for probable cause that a crime has been, or is about to be, committed. Almost all FISA requests are granted, and emergency approval for wiretaps can be handled within hours. In fact, the FISA statute allows the government in emergency situations to put a wiretap in place then seek court approval within 72 hours after-the-fact.

"Perhaps the government is justified in taking measures that in less troubled times could be seen as infringements of individual liberties. But if so, the Congress, not the president, is charged with establishing the rules that apply in exigent circumstances. The executive branch cannot unilaterally set the rules and enforce the rules, then eliminate court review of possible civil liberties violations."