USA Today reports that the NSA has a massive database of Americans’ phone calls. This is going to keep Bush’s controversial legal theories in the news for the next few weeks — especially since confirmation hearings for CIA director‐designate General Michael Hayden are right around the corner. Here’s a pertinent excerpt from our new report on Bush’s constitutional record:
President Bush’s claim that he has the “inherent” power as commander in chief to order the secret surveillance of international e‐mail and telephone conversations of persons within the United States raises a host of disturbing questions. For example, if the president can surveil international calls without a warrant, can he (or his successor) issue a secret executive order to intercept purely domestic communications as well? Can the president order secret warrantless searches of American homes whenever he deems it appropriate? Attorney General Alberto Gonzales has indicated that the president can order secret searches of American homes because President Bill Clinton deemed such break‐ins “legal,” as if that would bolster the validity of his claim.
Since Bush and his lawyers believe the president can arrest Americans without warrants (see the Department of Justice legal brief in the Padilla case), they presumably believe that domestic eavesdropping without warrants is also legal and appropriate. We’ll see what General Hayden says when he comes before the Senate.
Recent Cato debate on the NSA program here. Even more general background in this Cato report, Watching You.