http://www.azcentral.com/arizonarepublic/news/articles/1220bush-spy20.html

Resolution gave OK to eavesdrop, Bush says Vast but vague powers listed

Eric Lichblau and David E. Sanger Eric Lichblau and David E. Sanger New York Times Dec. 20, 2005 12:00 AM

WASHINGTON - President Bush and two of his most senior aides argued Monday that the highly classified program to spy on suspected members of terrorist groups in the United States grew out of the president's constitutional authority.

At the heart of the debate over the legality of the program to eavesdrop on the international communications of American citizens without a court order is a resolution, passed a week after the Sept. 11, 2001, attacks that authorized the president to use military force against those responsible for them.

Bush cited the resolution, the Authorization for the Use of Military Force, on Monday at his news conference. So did Attorney General Alberto Gonzales, who said in a separate session with reporters that the congressional measure, in addition to the president's inherent power as commander in chief, gave the government the power "to engage in this kind of signals intelligence."

The resolution itself is a single sentence, adopted unanimously by the Senate and with only one dissenting vote in the House of Representatives. It provides the president with sweeping but vaguely defined authority "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."

The resolution makes no mention of surveillance activity. Nor does it specify what is supposed to happen when American citizens, not themselves suspected of violating any law, come to the government's attention through actions taken under the resolution's terms.

"Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States," said Sen. Russell Feingold, D-Wis., in an interview Monday on the NBC program Today.

Offering their most forceful and detailed defense of the program in a series of briefings, television interviews and a hastily called presidential news conference, administration officials argued that the existing Foreign Intelligence Surveillance Act was not written for an age of modern terrorism.

In these times, Bush said, a "two-minute phone conversation between somebody linked to al-Qaida here and an operative overseas could lead directly to the loss of thousands of lives."

Bush strongly hinted that the government was beginning a leak investigation into how the existence of the program was disclosed. In the first of a series of appearances Monday to defend the intelligence operations, Gonzales told reporters that "this electronic surveillance is within the law, has been authorized (by Congress)."

Officials with knowledge of the program have said the Justice Department did two sets of classified legal reviews of the program and its legal rationale. Gonzales declined to release those opinions Monday.

Bush, Gonzales and Lt. Gen. Michael Hayden, the nation's second-ranking intelligence official, stepped around questions Monday about why officials decided not to use emergency powers they have under existing law, which allows them to tap international communications of people in the United States and then go to a secret court up to 72 hours later for retroactive permission.

"The whole key here is agility," Hayden said, adding that the aim "is to detect and prevent."

Administration officials, speaking on background because of the sensitivity of the information, suggested that the speed with which the operation identifies "hot numbers," the telephone numbers of suspects, and then hooks into their conversations lay behind the need to operate outside the old law.

The precise limit on how much authority presidents can wield in a crisis has never been determined with absolute clarity, although there have been occasions when courts have served as referees in contests of wills between the executive branch and Congress.

This particular dispute is highly likely to remain in the political realm because it is difficult to imagine how a challenge to the monitoring program could make its way into federal court. Any challenge would have to be brought by a person who had been a subject of the secret monitoring.

The government's legal rationale for relying on the 2001 resolution is contained in classified legal opinions, but the thinking was outlined by Gonzales at his news conference Monday. He referred to the Supreme Court's 2004 decision in the case of Yaser Esam Hamdi, an American citizen who challenged his detention as an enemy combatant.

The government's primary argument in the case was that the president's inherent authority as commander in chief obviated the need for any authorization by Congress.