Administration Paper Defends Spy Program Detailed Argument Cites War Powers

By Carol D. Leonnig

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 hearings.

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 administration asserted.

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 surveillance program.

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 trump FISA.

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 this again."

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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