Bush

In the aftermath of the Sept. 11 attacks, White House officials were haunted by two questions. Were there other terrorists lying in wait within the U.S.? And, given how freely the 19 hijackers had been able to operate before they acted, how would we know where to find them? It didn't take long before an aggressive idea emerged from the circle of Administration hawks. Liberalize the rules for domestic spying, they urged. Free the National Security Agency (NSA) to use its powerful listening technology to eavesdrop on terrorist suspects on U.S. soil without having to seek a warrant for every phone number it tracked. But because of a 1978 law that forbids the NSA to conduct no-warrant surveillance inside the U.S., the new policy would require one of two steps. The first was to revise the law. The other was to ignore it.

In the end, George Bush tried the first. When that failed, he opted for the second. In 2002 he issued a secret Executive Order to allow the NSA to eavesdrop without a warrant on phone conversations, e-mail and other electronic communications, even when at least one party to the exchange was in the U.S.--the circumstance that would ordinarily trigger the warrant requirement. For four years, Bush's decision remained a closely guarded secret. Because the NSA program was so sensitive, Administration officials tell TIME, the "lawyers' group," an organization of fewer than half a dozen government attorneys the National Security Council convenes to review top-secret intelligence programs, was bypassed. Instead, the legal vetting was given to Alberto Gonzales, then White House counsel. In the weeks since Dec. 16, when the program was disclosed by the New York Times, it has set off a ferocious debate in Washington and around the country about how the rule of law should constrain the war on terrorism.

That development ensures that the President will start the new year preoccupied for a while with a fight over whether his responsibility to prevent another attack gave him the power to push aside an act of Congress--or, to use the terms of his harshest critics, to break the law. Bush and his supporters say that the President has the power to take extraordinary steps to protect the nation and that sometimes nothing less will do. His opponents say that the war on terrorism can be fought just as well, if not better, without novel interpretations of the law and that the White House reasoning sounds all