Surveillance Laws and Presidential Power

Renee Montagne: One of Congress' top priorities this year is to pass a law regulating the government's surveillance of American citizens. The old law expires next month. Lawmakers have to decide whether it should limit the president's ability to spy on Americans who are overseas.

And as NPR's Ari Shapiro reports, that debate reflects a larger issue about presidential power.

ARI SHAPIRO: The Foreign Intelligence Surveillance Act or FISA is a law that tells the president generally that he must have court approval to spy on Americans in the U.S. It doesn't say much at all about Americans overseas.

When Americans go abroad to take a vacation or fight a war, the most specific explanation of their privacy rights comes in an executive order issued in the 1980s. In a recent speech, Democratic Rhode Island Senator, Sheldon Whitehouse, described the order known by its official number 12333.

Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): Which says that the administration will not wiretap Americans overseas and let the attorney general determines that that person is an agent of a foreign power.

SHAPIRO: That may sound like legalese, but the important distinction here is between a law, like the one protecting the privacy of Americans in the U.S., and an executive order, like the one protecting Americans abroad. A recent Justice Department memo spells out the difference. Here's Senator Whitehouse again, reading from the parts of the memo that he convinced the Justice Department to declassify and make public.

Sen. WHITEHOUSE: An executive order cannot limit a president.

SHAPIRO: The memo says that if the president appears to violate an executive order, he has instead modified or waived it. And he can do that in secret.

Sen. WHITEHOUSE: In other words, the only thing standing between Americans traveling overseas and a government wiretap is an executive order that this president believes he is under no obligation to obey.

SHAPIRO: Legally speaking, that's actually not such a controversial position. It's widely accepted that the president is free to change orders that originated in the executive branch.

But Pepperdine law professor Doug Kmiec, who worked in the Justice Department under President Reagan, thinks it's not exactly fair for the president to secretly ignore an executive order without telling anybody.

Professor DOUG KMIEC (Law, Pepperdine University): Because the whole point of executive orders is to specify rules. And the benefit of the executive order is one of transparency and accountability.

SHAPIRO: Kmiec says is the president secretly rejects executive orders without publicly revealing them. It undermines one of the basic tenets of the system which is that the president follows a public set of rules. In the almost three decades that Executive Order 12333 has been in place, nobody has seriously questioned whether the president is secretly ignoring the rule.

But today the atmosphere is different. The Bush administration has exerted executive power like no White House in the last 30 years. And some said that Democrats have now become so suspicious of the administration that they want to amend the FISA law to protect Americans overseas rather than leave those rules in an executive order.

Democratic Senator Ron Wyden of Oregon says this amendment is necessary because of the Bush administration's past behavior.

Senator RON WYDEN (Democrat, Oregon): They have undercut their arguments against what I'm trying to do by their very own words. It would be one thing for them to say, oh, we've taken care of it through an executive order. If they didn't, out of the other side of their mouths say, executive orders can't limit a president. They can't have it both ways.

SHAPIRO: Administration officials often say that Executive Order 12333 is enough to protect the privacy of Americans overseas.

For example, Justice Department's spokesman Dean Boyd said in a statement to NPR: Continued use of this procedure, together with the authorities and safeguards in the Senate Intelligence Bill, without the Wyden amendment, would ensure that surveillance can be conducted consistent with the Constitution.

Boyd pointed out that the president is required to follow the Constitution's Fourth Amendment which protects Americans' privacy, but when I asked whether ignoring 12333 would be a violation of Fourth Amendment, Boyd declined to discuss hypotheticals.

Harvard Law Professor David Baron worked at the Justice Department in the 1990s, and he says at almost every congressional hearing about spying, interrogations and detention, administration officials give a long list of protections and limitations that the White House has voluntarily put in place.

Professor DAVID BARON (Law, Harvard University): And then the senators, in questioning, often say well, since you're willing to do all that, I hope you won't mind if I just included in a statute that we're going to put up. And then almost without exception, the administration always says oh, well we would veto that. We definitely oppose you putting it in statute.

SHAPIRO: Of course, even a law may not guarantee that the president will act a certain way. The White House has asserted a right to ignore laws as well.

By:  Ari Shapiro
Source: National Public Radio