- The Washington Times - Thursday, December 22, 2005


The Bush administration formally defended its domestic spying program in a letter to Congress late yesterday, saying national security outweighs the privacy of those who are monitored.

In a letter to the chairmen of the House and Senate intelligence committees, the Justice Department said President Bush authorized electronic surveillance without first obtaining a warrant in an effort to thwart terrorist acts against the United States.

“There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the president,” wrote Assistant Attorney General William E. Moschella. “That must be balanced, however, against the government’s compelling interest in the security of the nation.”

Mr. Bush has acknowledged he authorized such surveillance and repeatedly has defended it in recent days.

But Mr. Moschella’s letter was the administration’s first public notice to Congress about the program in which electronic surveillance was conducted without the approval of a special secret court. The court was created to examine requests for wiretaps and searches in the most sensitive terrorism and espionage cases.

Mr. Moschella maintained that the president acted legally when he authorized the National Security Agency to go around the court to conduct electronic surveillance of international communications into and out of the United States by suspects tied to al Qaeda or its affiliates.

Mr. Moschella cited as the primary legal justification for the program a Sept. 18, 2001, congressional resolution, the Authorization to Use Military Force, which authorizes the president to wage war against “persons” tied to al Qaeda and any other terrorist groups involved in the September 11 attacks.

The resolution “clearly contemplates action within the United States,” he wrote, and acknowledges Mr. Bush’s power to prevent terrorism against the United States.

Mr. Moschella said the president’s constitutional authority also includes power to order warrantless foreign intelligence surveillance inside the United States. He said that power has been affirmed by federal courts, including the secret Foreign Intelligence Surveillance Act court.

The administration bypassed the FISA court, which requires the government to provide evidence that a terrorism or espionage suspect is “an agent of a foreign power.” The foreign intelligence law makes it a crime for anyone who “intentionally intercepts” a communication without a warrant.

Mr. Moschella said Mr. Bush’s action was legal because that law provides a “broad” exception if the spying is authorized by another statute, and he said Congress’ Sept. 18 authorization provided such authority.

The resolution didn’t limit the president to going after al Qaeda only in Afghanistan, Mr. Moschella wrote.

For searches to be reasonable under law, a warrant is needed, Mr. Moschella said. But, outside criminal investigations, he said, the Supreme Court has created exceptions under which warrants are not needed.

“Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the ‘special needs’ exception to the warrant requirement,” he wrote.

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