WASHINGTON, 22 December 2005 — To justify creating a domestic spying program, the Bush administration is relying on a law Congress passed in the chaotic days after the Sept. 11, 2001, terrorist attacks that authorizes the president to wage war against Al-Qaeda and its supporters.

In doing so, the administration bypassed a secret court system that for nearly 30 years has monitored the government’s use of electronic surveillance to gather foreign intelligence on US soil. But is the administration on solid legal ground in using warrantless electronic surveillance for more than four years?

Legal experts aren’t so sure and are questioning the legal advice President George W. Bush received, not so much in the days after Sept. 11, when US authorities were bracing for a possible second wave of attacks. Instead, legal experts worry that what seemed appropriate then may not be appropriate now.

Attorney General Alberto Gonzales said Monday the administration believes Congress gave Bush the authority to use “signals intelligence” — wiretaps, for example — to eavesdrop on international calls between US citizens and foreigners when one of them is a suspected Al-Qaeda member or supporter.

The law Gonzales is relying on is the Authorization to Use Military Force, which Congress passed and Bush signed a week after 19 hijackers crashed four commercial jets into the World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 people.

The administration’s interpretation allowed the government to avoid requirements under the 1978 Foreign Intelligence Surveillance Act. The act established procedures that an 11-member court used in 2004 to oversee nearly 1,800 government applications for secret surveillance or searches of foreigners and US citizens suspected of terrorism or espionage.

“I think they were aggressive,” said Pepperdine University law professor Douglas Kmiec, who served in the Justice Department during the Reagan and first Bush administrations. “Were they right? Here, I think context matters. Within six months, 12 months of the attacks, I think that the AUMF (authorization law) would have been a basis for legal authority,” he said. “But that diminishes the further we are from the attacks.”

Michael Nardotti, a former Army judge advocate general, said the administration may need to release more information about attacks that the spying program prevented. “I don’t think passage of time should be the guide,” he said. “It should be the continuing assessment of the threat.”

Kmiec said Bush clearly believes he did the right thing and deserves credit for keeping some members of Congress informed. “But he was entirely reliant on the quality of legal advice he received,” Kmiec said.

Gonzales, who was White House counsel when the program was created, said just because Congress’ war authorization doesn’t mention electronic surveillance doesn’t mean the law doesn’t allow it. He cited a 2004 plurality opinion by Supreme Court Justice Sandra Day O’Connor to back him up. Although Congress never included the word “detention” in the war authorization, O’Connor said lawmakers gave the president power to detain enemy soldiers — even US citizens — captured on the battlefield.

“That’s ridiculous,” said Harvard University law professor Laurence H. Tribe. “O’Connor wasn’t saying that anything not mentioned (in the authorization) is OK ... To use that to say it’s OK to eavesdrop on people ... is to stretch the authorization completely beyond recognition.”

Congress passed the surveillance law after public outcry over abuses during the Nixon administration, which spied on American anti-war and civil rights protesters. Since Sept. 11, the FISA court’s work has increased dramatically. In 2004, the government filed 1,758 applications to conduct secret electronic surveillance or searches, compared to 932 in 2001.

The secretive court rarely denies a government request for surveillance. But the judges sometimes force government agents to continue gathering evidence until the court is satisfied there is a basis for such surveillance: that a subject is “an agent of a foreign power.”

Evidence gathered by warrantless wiretaps or searches generally is not admissible in civilian criminal courts or the FISA court. Judges on the secret court press the government about the basis for its requests, asking questions that get into the heart of “what’s going to be done and why,” US District Judge Royce Lamberth, the FISA court’s former presiding judge, said in a 1997 speech to the American Bar Association.

Under the act, the attorney general can authorize a warrantless wiretap for up to 72 hours. But he must give the presiding judge of the FISA court a head’s up, and justify the surveillance later. If the attorney general fails, the court has discretion to notify the target of the surveillance.

Steven Shapiro, national legal director of the American Civil Liberties Union, said he suspects the administration couldn’t meet its burden of proof under the law. “My suspicion is they were engaging in a very large fishing expedition,” he said. “And it had to do with breadth not urgency.”

— Toni Locy has covered legal affairs in Washington for 12 years.