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Toobin: Bush on 'questionable legal footing'
NEW YORK (CNN) -- President Bush said Monday that a program designed to eavesdrop on the international calls involving U.S. citizens suspected of being involved with al Qaeda is legal under an measure enacted by Congress shortly after the September 11 terrorist attacks. CNN senior legal analyst Jeffrey Toobin said the president's authorization, and subsequent re-approvals every 45 days, might lack legal merit. Q: What legal justification is the president using for the secret wiretaps? TOOBIN: He is using the combination of the president's inherent power to defend the country plus the law Congress passed shortly after 9/11 that authorized military action against Afghanistan [and authorized him to use "necessary and appropriate force" to fight terrorism.] It should also be pointed out that there is nothing unlawful or wrong with tapping U.S. citizens, but it has to be done by court order, in accordance with the Federal Intelligence Surveillance Act (FISA) enacted in 1978. Q: Who gives the court orders under FISA? TOOBIN: The FISA court is a rotating court, with the judges appointed by the chief justice. There are no defense lawyers. Q: In your opinion is the president on firm legal footing? TOOBIN: I think he is on questionable legal footing because he did not seek court orders, which are easy to get. The key question is why didn't the president go to the FISA court? It's a virtual rubber stamp. The president says he didn't always adhere to FISA because the terror threat is so fast moving and there's no time to wait. But you can actually get a court order from the FISA court retroactively, so it's hard to see what is slowing things down. Also there have been 19,000 court orders approving wiretaps from the FISA court since it started in 1978, and only five have been turned down. Q: Does any part of the Patriot Act justify the taps? TOOBIN: The Patriot Act amended several national security laws. I wonder why they didn't amend the law requiring you go to FISA court at that time. 
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