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Justice Dept. defends spying Says Constitution gives Bush power

Carol D. Leonnig Washington Post Jan. 20, 2006 12:00 AM

WASHINGTON - The Bush administration argued Thursday 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.

The Justice Department's analysis also claims that if a 1978 law that requires 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.

Intelligence and national security law experts 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 justifications were laid out in a 40-page white paper sent to Congress by Attorney General Alberto Gonzales on Thursday. The administration has offered many of the same arguments verbally 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 2001 resolution that authorized the president to use military force against al-Qaida and to deter terrorist attacks.

"The program was designed to be protective of civil liberties," said Steven Bradbury, acting assistant attorney general for the Office of Legal Counsel. "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 to hold hearings starting today on the classified program, which began shortly after the Sept. 11 terrorist attacks. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has also announced plans to hold hearings.

In the past two weeks, the nonpartisan Congressional Research Service has released two reports suggesting legal flaws in the program. One analysis concluded that the warrantless surveillance effort directly conflicts with Congress's intentions in passing the 1978 law. It also found that the rest of the administration's legal justifications were "not as well-grounded" as the administration asserted.

A CRS report released Tuesday said 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 Tuesday, the American Civil Liberties Union and the Center for Constitutional Rights filed separate lawsuits challenging the program. The groups assert that President Bush exceeded his power, violated the privacy rights of American citizens and broke the FISA law when he authorized the program to find out if al-Qaida cells were plotting inside the United States.