[Mb-civic] Administration Paper Defends Spy Program - Washington Post

[William Swiggard]

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 
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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/19/AR2006011903276.html?nav=hcmodule
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20060120/d02e33a7/attachment-0001.htm