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Domestic Spying Gets a Boost

The Justice Department jumps to the defense of Bush's program with a legal analysis that calls such surveillance an established power.

January 20, 2006|Richard B. Schmitt | Times Staff Writer

WASHINGTON — Seeking to allay concerns from the public and Congress, the Bush administration ratcheted up its defense of a controversial domestic surveillance program Thursday, saying the power of the president to gather such intelligence during wartime was well-established and had been practiced by some of the most revered commanders in chief.

The inherent power of the president to order such warrantless surveillance, moreover, was confirmed and enhanced by Congress after the terrorist attacks of Sept. 11, the Justice Department said in a new legal analysis defending the program. The report argued that a 1978 law regulating intelligence-gathering in the United States did not close the door on surveillance that had not been approved by a special court created by that law.

The unusual 42-page white paper marked a stepped-up effort by the administration to mollify critics and comes as public furor over the program, which was first disclosed last month, refuses to die. The Justice Department analysis mostly expounded on arguments that Bush and other officials have made about the program, though the timing of its release indicates that the White House is sensitive to the issue becoming a political liability.

The disclosure that Bush had, after the Sept. 11 attacks, secretly authorized the National Security Agency to monitor telephone calls and other communications involving possibly hundreds of people in the United States has triggered challenges by civil liberties groups and provoked widespread legal and political concerns that cross party lines.

The legal rationale for the program has been questioned by the bipartisan Congressional Research Service, and Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, has announced hearings on the program early next month. Atty. Gen. Alberto R. Gonzales has agreed to testify. House Democrats will hear testimony on the issue today.

There have been calls for a special prosecutor to investigate what some people, including former Vice President Al Gore, have said is blatantly illegal activity by the administration.

Vice President Dick Cheney stepped up his defense of the program Thursday as well, saying that it was within the president's constitutional authority to defend the country against its enemies. He reiterated the administration's contention that the program had helped identify and prevent terrorist attacks in the United States.

"This is a wartime measure, limited in scope to surveillance associated with terrorists and conducted in a way that safeguards the civil liberties of our people," Cheney said in a speech to the Manhattan Institute for Policy Research, a conservative think tank in New York.

The administration has said that the program was aimed at monitoring communications in which one party was believed to have ties to Al Qaeda or related terrorist networks.

Officials have acknowledged that some innocent people were inadvertently monitored, and the effectiveness of the program has been hard to judge because it remains classified.

The Justice Department analysis reflected an expansive view of executive power -- one that Bush and the department have claimed since the terrorist attacks on New York and the Pentagon.

The analysis asserted that Bush has "the chief responsibility under the Constitution to protect America from attack" and that Congress "confirmed and supplemented" that authority when, days after the Sept. 11 attacks, it enacted a resolution empowering him to use "all necessary and appropriate force" to protect the nation.

Although the resolution did not specifically authorize warrantless surveillance, the Justice Department argued that the authority was essentially implied because such operations constituted a "fundamental incident of the use of military force."

In addition, the analysis contended that the program could be justified by history, pointing to spy programs authorized by President Franklin D. Roosevelt during World War II.

It noted that George Washington was "a master of military espionage" who ordered his generals to find ways to intercept and open the mail of British redcoats without breaking the seals.

Congress sought to strictly limit domestic intelligence-gathering in 1978 when, following revelations of widespread monitoring of individuals for political purposes, it created a special court to oversee government spying.

The Justice Department report argued that Congress effectively overruled that law with its broad mandate to Bush after Sept. 11.

Some legal experts have questioned that rationale and the justification for ignoring the requirements of the law, the Foreign Intelligence Surveillance Act. The law includes a specific provision that addresses the power of the president during wartime, giving him 15 days to conduct surveillance without court approval.

"When you have a statute that seems to be pretty clear and pretty specific about what ought to happen, and then that is just ignored, that is probably the weakest point in their analysis," said Carl Tobias, a law professor at the University of Richmond.

"The history is interesting, but irrelevant," said David Cole, a professor at Georgetown University Law Center in Washington. "If he needed broad authority, he should have come back to Congress and asked for it."

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