ALEX CHADWICK, host:
President Bush is in Manhattan, Kansas today, defending his domestic spying program to a crowd on the campus of Kansas State University. The New York Times broke this story a month ago. The President used the secret electronic spy agency, The National Security Agency, to tap phone calls between suspected terrorists and people in the U.S., including American citizens. And he did it without obtaining warrants.
Now there's a fight over the legality. The administration says it is okay under the authority that Congress gave Mr. Bush after the September 11th attacks. NPR's senior Washington editor Ron Elving joins us. Ron, wouldn't this be a simple legal question to answer? Can the government listen in on these phone calls or not?
RON ELVING reporting:
Okay, here's a simple legal answer. They can't. But here's the complicated part, there are exceptions. The government can get a warrant from a court, if they think they have cause to think you're breaking the law. And if we're talking about a foreign intelligence situation, they can go to a special court set up by a specific law called the Foreign Intelligence Surveillance Act, or FISA.
CHADWICK: But the whole thing is here, no warrants, no warrants.
ELVING: And, in this particular case, they have not gone to get the warrants. They say there's not enough time to go and get the warrants if you're going after a telephone call between, say, a suspected member of al-Qaeda, and somebody in the United States.
CHADWICK: But this FISA law was set up to be pretty quick in its reaction, wasn't it? Isn't there, and is retroactive provision, that is, you could start tapping phone calls, and then go ask the court for retroactive permission?
ELVING: It's hard to think of anything more timely than that, if you can go back later. And the administration has not said a lot about why they don't seek warrants after the fact, as they would be allowed.
That raises the question of whether they're concerned about timeliness, or whether they're concerned about the question or issue of authority. They seem to asserting they have all the authority they need on their own. And they say Congress blessed this back in September of 2001, when they gave them special powers to go after the people behind the 9/11 attacks.
CHADWICK: Yeah, but I guess now there are people in Congress who are saying, hold on, that was not the blessing that we issued.
ELVING: Certainly not everyone in Congress thinks they issued such a blessing. And others are just kind of hedging their bets at this point. And there will be hearings into this beginning two weeks from today in the Senate Judiciary Committee, where the chairman, Arlen Specter, has said he has real doubts about the spying.
CHADWICK: Aren't people in Congress and the administration trying to listen to what the public is saying about this? Is the public saying anything? Are people, do polls find people are upset about this or not?
ELVING: Much of the public does care, despite some polls that show that people aren't paying that close attention to it. Most people, though, are of two minds on a question like this. And if you ask them if the government should have a warrant to spy on American citizens, they'll say yes, and if you ask them if spying on non-citizens living in the U.S. is okay, well, then they're a little less sure. One thing they know for sure is they don't want another 9/11.
Now, this morning, a former director of the National Security Agency here in Washington, Mike Hayden, who's a general, said that, look folks, it's been limited, it's been focused, it's been productive. In essence, he said trust us, we're doing this right, and if we had been doing it before 9/11, we might have been able to prevent that from happening. That's a powerful argument for most Americans.
CHADWICK: And how about the Osama bin Laden tape that came out this last week? It's not an argument really, but it affects this whole debate, doesn't it, in some way? I mean, it certainly makes him a palpable presence again.
ELVING: Absolutely. And let's focus, though, on the question of whether or not the government is the only person who should decide what's necessary. And what do we mean, for that matter, by government?
Do we mean strictly the National Security Agency? I mean, Mike Hayden says trust us. Is that the last word or is somebody else in the White House involved in this, someone else in the executive branch, somewhere? Do they have to get a judicial branch approval? Do they have to get Congress to sign off? How much authority for extraordinary investigations of Americans does the White House have, and who decides?
CHADWICK: Good questions all from Ron Elving, senior Washington editor.
Ron, you're writing in your online column this week on legal opinions and public attitudes, and they're divided on this question.
Ron Elving, at Npr.org, as well as here on DAY TO DAY.
Thanks, Ron.
ELVING: Thank you, Alex. Transcript provided by NPR, Copyright NPR.
