[Mb-civic] Administration Paper Defends Spy Program - Washington
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Fri Jan 20 10:45:21 PST 2006
Administration Paper Defends Spy Program
Detailed Argument Cites War Powers
By Carol D. Leonnig
Washington Post Staff Writer
Friday, January 20, 2006; A01
The Bush administration argued yesterday that the president has inherent
war powers under the Constitution to order warrantless eavesdropping on
the international calls and e-mails of U.S. citizens and others in this
country, offering the administration's most detailed legal defense to
date of its surveillance program.
The Justice Department's lengthy legal analysis also says that if a 1978
law that requires court warrants for domestic eavesdropping is
interpreted as blocking the president's powers to protect the country in
a time of war, its constitutionality is doubtful and the president's
authority supersedes it.
Many experts on intelligence and national security law have concluded
that the president overstepped his authority, and that the 1978 Foreign
Intelligence Surveillance Act specifically prohibits such domestic
surveillance without a warrant.
The legal justifications were laid out in a 42-page white paper sent to
Congress yesterday by Attorney General Alberto R. Gonzales. The
administration has offered many of the same arguments orally in
defending the program since its existence was disclosed last month.
For example, Gonzales asserted that the president's power to protect the
country with surveillance was reaffirmed when Congress passed a
resolution in October 2001 that authorized the president to use military
force against al Qaeda and to deter future terrorist attacks.
"The program was designed to be protective of civil liberties," Steven
G. Bradbury, acting assistant attorney general for the department's
Office of Legal Counsel, said yesterday in a briefing with reporters.
"It's not a blank check that says the president can do whatever he
wants." Bradbury said the president has a special role -- and duty -- to
take whatever military action is needed to counter attacks on the United
States, and those actions necessarily include intercepting
telecommunications and e-mail.
"When it comes to responding to external threats to the country . . .
the government would like to have a single executive who could act
nimbly and agilely," Bradbury said.
The Justice Department document was issued as the administration
continued to contend with criticism of the eavesdropping program, which
is operated by the National Security Agency. Democratic members of
Congress plan hearings starting today on the classified program, which
began shortly after the Sept. 11, 2001, attacks. Senate Judiciary
Committee Chairman Arlen Specter (R-Pa.) has also announced plans for
In the past two weeks, the nonpartisan Congressional Research Service
has released two reports suggesting significant legal flaws in the
president's program. One analysis concluded that the warrantless
surveillance effort directly conflicts with Congress's intentions in
passing the FISA law. It also found that the rest of the
administration's legal justifications were "not as well-grounded" as the
A second CRS report, released Tuesday, concluded that the administration
appears to have violated a national security law by failing to brief the
full House and Senate intelligence committees on the program in 2001.
The administration limited its briefings instead to the two most senior
members on each committee.
Also on Tuesday, two civil liberties groups filed separate lawsuits
challenging the program. The American Civil Liberties Union and the
Center for Constitutional Rights assert that President Bush exceeded his
power, violated the privacy rights of U.S. citizens and broke the FISA
law when he authorized the program in an effort to find out if secret al
Qaeda cells were plotting inside the United States.
Yesterday, ranking Democrats on the Senate and House intelligence
committees, Sen. John D. Rockefeller IV (W.Va.) and Rep. Jane Harman
(Calif.), along with Senate Minority Leader Harry M. Reid (Nev.) and
House Minority leader Nancy Pelosi (Calif.), sent a letter to Vice
President Cheney demanding that the full committee be briefed on such
intelligence activities in the future.
In its legal analysis, the Justice Department contends that "the broad
language" of Congress's authorization to use force "affords the
President, at a minimum, the discretion to employ the traditional
incidents of the use of military force," including the warrantless
The Justice Department also argues that the inherent presidential powers
in Article II of the Constitution -- to wage war -- cannot be abridged
or impended in the context of a global terrorism fight. Justice lawyers
say they believe that the president's powers are consistent with FISA
but that if there is any question of a conflict, the president's powers
But James Bamford, an expert on U.S. intelligence and the author of two
books considered primers on the NSA, said the Justice Department's
arguments are refuted by Congress's clear intent in 1978 to block
warrantless surveillance and by its lack of intent to suggest such
surveillance in October 2001.
"You could review the entire legislative history in the authorization to
use military force and I guarantee you won't find one word about
electronic surveillance," Bamford said. "If you review the legislative
history of FISA, you will find Attorney General Griffin Bell testifying
before the intelligence committee saying this was specifically passed to
prevent a president from claiming inherent presidential powers to do
Anthony D. Romero, ACLU executive director, said Bush and Gonzales are
manufacturing legal justifications but the program remains in violation
of the constitutional amendments protecting free speech and privacy.
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