Administration defends NSA wiretapping


President Bush gestures during a speech Thursday in Sterling, Va.

The Associated Press
Published: Friday, January 20, 2006 at 6:01 a.m.
Last Modified: Thursday, January 19, 2006 at 11:39 p.m.
The Bush administration offered its fullest defense to date on Thursday of the National Security Agency's domestic eavesdropping program, saying that authorization from Congress to deter future terrorist attacks "places the president at the zenith of his powers in authorizing the NSA activities."
In a 42-page legal analysis, the Justice Department cited the Constitution, the Federalist Papers, the writings of presidents both Republican and Democratic, and dozens of scholarly papers and court cases in justifying President Bush's power to order the NSA surveillance program.
Officials said Attorney General Alberto R. Gonzales ordered up the analysis partly in response to what administration lawyers felt were unfair conclusions in a Jan. 6 report by the nonpartisan Congressional Research Service. The congressional report challenged virtually all the main legal justifications the administration had cited for the program.
Vice President Dick Cheney, meanwhile, in a speech on Thursday once again defended the NSA eavesdropping operation as "critical to the national security of the United States," even as House Democrats prepared to hold an unofficial hearing on Friday into a program that they charge is illegal and unconstitutional. Cheney is also scheduled to meet with congressional leaders on Friday at a separate, closed-door briefing on the program.
The analysis released Thursday by the Justice Department, with input from lawyers throughout the department, expanded on the legal arguments made in two still-classified legal opinions as well as in a slimmer letter that the department sent to Congress last month.
The basic thrust of the administration's legal justification was the same - that the president has inherent authority as commander in chief to order wiretaps without warrants and that the NSA operation does not violate either a 1978 law governing intelligence wiretaps or the Fourth Amendment ban on unreasonable searches.
This month's Congressional Research Service report was particularly critical of the administration's claim that the NSA program was justified by a resolution passed by Congress three days after the Sept. 11 attacks, authorizing the use of "all necessary and appropriate force" against those responsible for the attacks in an effort to deter another attack.
The research service report found there was no indication that Congress intended to authorize warrantless wiretaps when it gave President Bush the authority to fight al-Qaida and invade Afghanistan. But the Justice Department did not back away from its position in Thursday's report, saying the type of "signals intelligence" used in the NSA operation clearly falls under the congressional use-of-force authorization.
"The president has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States," the report said. The congressional authorization on the use of force, it added, "places the president at the zenith of his powers in authorizing the NSA activities."
But many critics of the program, which allows the agency to eavesdrop on international phone calls and e-mail messages to and from American citizens and others within the United States, said that they remained unconvinced.
"The administration's latest justification for circumventing the law to spy on Americans falls far short of answering the many questions Congress and the American people have about this activity," said Sen. Harry Reid of Nevada, the Democratic leader.
"That is why there have been bipartisan calls for administration officials to come to Congress to answer these questions and ensure that the Judiciary and Intelligence Committees can thoroughly investigate the administration's actions," Reid said.
Attorney General Gonzales sent Thursday's document, officially called a "white paper," to Reid and to the Senate majority leader, Bill Frist. While the report did not go into many operational details of the program, it sought to bolster the case for the president to retain inherent power to order warrantless searches in the United States as part of the seeking of information on foreign agents.
That authority, the Justice Department analysis said, is consistent with a three-part test established by the Supreme Court in a 1952 case, Youngstown Sheet & Tube Co. v. Sawyer, which struck down President Truman's authority to seize the nation's steel mills in the name of national security.
Nor does the NSA program conflict, the Justice Department said, with what many legal analysts had regarded as the exclusive authority for intelligence wiretaps under the Foreign Intelligence Surveillance Act, passed by Congress in 1978 in response to Watergate-era political abuses. Some presidential powers, particularly in the area of national security, are simply "beyond Congress' ability to regulate," the analysis said.
Cheney, who was actively involved in the creation of the NSA program and has been a vigorous advocate for expanded presidential power, echoed that theme in a speech on Thursday before the Manhattan Institute in New York.
While some current and former officials have challenged the value of the NSA program in deterring an attack on American soil, the vice president said, "The activities conducted under this authorization have helped us to detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States."
President Bush and Cheney have been sharply critical of the public disclosure of the program in The New York Times.
The Justice Department has opened an investigation into the public disclosure.
Cheney acknowledged in his speech that "a spirited debate is now under way, and our message to the American people is clear and straightforward. These actions are within the president's authority and responsibility under the Constitution and laws, and these actions are vital to our security."
But Robert Reinstein, dean of the law school at Temple University, said in an interview that he considered the NSA eavesdropping program "a pretty straightforward case where the president is acting illegally," and he said there appeared to be a broad consensus among legal scholars and national security experts that the administration's legal arguments were weak.
The foreign intelligence law passed by Congress in 1978 represents the Bush administration's biggest legal hurdle, he said. "When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that," he said.
Two leading civil rights groups brought lawsuits this week aimed at ending the NSA program, and several lawyers representing defendants in terrorism cases are also seeking to challenge the program on the grounds that it may have been improperly used in criminal prosecutions.
Rothstein predicted that the court would ultimately declare the program unconstitutional. "This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this," he said.
A spokesman for Frist said that the white paper was an important contribution to the debate over the NSA program.
"It lays out a powerful argument underscoring how to keep tabs on al-Qaida to ensure the safety of the American people while balancing appropriate privacy expectations, which Congress would do well to keep in mind as we move forward," the spokesman said.

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