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The subchapter on electronic surveillance begins as follows: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath" and if several other limiting conditions are met. Those conditions include that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

A "United States person" is defined by the law as "a citizen of the United States, an alien lawfully admitted for permanent residence," and most associations and corporations, unless they are controlled by a foreign government or terrorist group.

Bush administration opponents have latched onto that limitation to condemn the White House's decision to bypass the federal courts and order the surveillance of calls and emails between U.S. citizens or lawful permanent aliens in the states and suspected terrorists or their supporters elsewhere.

"Requiring a judge to approve a wiretap is not a nicety that can be avoided by presidential decree -- it is a fundamental rule of American democracy," wrote Ann Beeson, associate legal director of the American Civil Liberties Union, in a press statement. "The government ignored the system authorized by Congress in favor of limitless power to spy on Americans."

But one section of the statute seems to contradict Beeson's claim.

"[N]o contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under [FISA] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person." (Emphasis added.)

Schmidt, writing in the Chicago Tribune Thursday, hinted that Presidents Clinton and Bush both may have relied on the "death or serious bodily harm" exception.

"Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next," Schmidt wrote, analyzing Bush's decision-making dilemma after the 9/11 terrorist attacks. "FISA does not anticipate a post-Sept. 11 situation."

A handful of congressional Democrats, including House Minority Leader Nancy Pelosi (D-Calif.), have suggested that Bush could be subject to impeachment for his decision. Republicans have dismissed those calls as political posturing. Other administration critics are threatening lawsuits to block similar surveillance in the future, but Schmidt doubts that tactic would be successful.

"What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment," Schmidt wrote. "It is hard to imagine the Supreme Court second-guessing that presidential judgment."

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