WASHINGTON -- In its most detailed defense of the National Security Agency's secret domestic spying program, the Bush administration raised serious questions yesterday about the validity of the 1978 law that prohibits the NSA from eavesdropping in the United States without a court order.
The Justice Department analysis, released hours after the broadcast of another warning from al-Qaida leader Osama bin Laden, contends that the Foreign Intelligence Surveillance Act stands on "fragile constitutional ground" because it limits presidential authority to obtain intelligence in wartime. President Bush authorized the NSA program after the Sept. 11 attacks, but its existence came to light only last month.
Critics of the NSA operation say the Bush administration acted illegally by circumventing a secret court, established under the 1978 law, that approves warrants for eavesdropping within U.S. borders. Bush contends that his power as commander in chief gives him the authority to order actions to defend the country, including the NSA's domestic spying operation.
In the 42-page analysis, which called the NSA program an "early warning system to help avert the next attack," Justice Department lawyers said it was not clear that Congress ever intended the law to tie the president's hands in wartime. They note a congressional report that accompanied the 1978 legislation which acknowledged that the Supreme Court could come to "a different decision" about the president's power to conduct electronic surveillance.
"It's an interesting point," said University of Richmond law professor Carl Tobias, adding that the constitutionality of the law has never been tested in the courts.
The new analysis, which builds on a five-page letter to Congress last month, refers to what the Justice Department describes as the president's "constitutional authority to collect foreign intelligence information through interception of communications."
It comes on the heels of three legal analyses, including two by the nonpartisan Congressional Research Service, that raised questions about the legality of the NSA program. It also foreshadowed arguments that Attorney General Alberto R. Gonzales is likely to make when the Senate Judiciary Committee holds hearings next month on the NSA program.
The analysis expands on arguments the White House has made in defending the program: that Article II of the Constitution gives the president the authority to act outside of congressional statutes if national security is at stake, and that Congress authorized similar programs in a resolution passed after the 2001 attacks.
"The president must have authority to gather information necessary" to fight the war at hand, the Justice Department said. Intelligence programs like that at the NSA are crucial to his wartime responsibilities - even more so than before 9/11, because the current fight is more dependent on strong intelligence, the report said.
The president's authority is particularly strong when used to engage the enemy abroad, the report adds, emphasizing that the calls being monitored are international calls, even if they involve callers in the United States.
"The president has the duty to take action as necessary to protect the country, particularly in a time of armed conflict following what was the deadliest attack on U.S. soil in the history of the nation," said acting Assistant Attorney General Steven Bradbury after the release of the report.
A congressional resolution on Sept. 14, 2001, authorizing Bush to use "all necessary and appropriate force" in response to the attacks, allowed the NSA to bypass requirements to obtain warrants, the administration contends. A provision in the 1978 law says it may not apply if Congress passes legislation stating otherwise, and the administration sees the 2001 resolution as such a measure.
"Congress gave its support, confirmed the president's authority and supplemented his constitutional authority with a very broad authorization statement that the president can use all necessary force as he determines necessary to protect the country from further attack," Bradbury said.
The Congressional Research Service came to the opposite conclusion, finding that "it appears unlikely" that a court would rule that Congress had given Bush such authority, because the administration's reasoning could be used to justify almost any activity in the name of fighting terrorism. Critics have noted that the 2001 resolution authorized presidential powers only to counter those who aided in the 9/11 attacks.
Kenneth Bass, an intelligence counsel to President Jimmy Carter when the 1978 law took effect, said the Bush administration still has not addressed another question surrounding the NSA's domestic spying operation: Why didn't the agency obtain court warrants anyway, which it could have gotten easily if everyone being listened to was suspected of being a member of al-Qaida or an affiliate?
Bass said the 1978 law was written precisely to clarify that the only way the government could eavesdrop on people in the United States was by first obtaining a warrant from the special court. He said the legal precedents that the Justice Department cites in support of Bush's authority as commander in chief predate the 1978 law.
Democrats on Capitol Hill were unmoved by the new Bush administration analysis.
The top Democrat on the Senate Intelligence Committee, Sen. John D. Rockefeller IV of West Virginia, called it a "repackaging" of the Bush administration's arguments and "not very persuasive." Senate Minority Leader Harry Reid of Nevada said it still "falls far short of answering the many questions Congress and the American people have about this activity."
George Washington University law professor Jonathan Turley, a critic of the Bush administration, called the new analysis "the greatest work of fiction since Tolstoy." Turley, who has argued cases before the special court set up by the 1978 law, said, "The president is asserting the right to act in contravention of the law any time he thinks it is in the national interest."
Turley and three other lawyers, including a veteran of the Reagan administration, are to testify today before a House Democratic forum that will air criticism of the NSA program.
Anthony Romero, executive director of the American Civil Liberties Union, which sued the government this week over the NSA program, questioned the validity of the Justice Department analysis, pointing out that Gonzales had advised Bush on the legality of the domestic spying program while White House counsel.
"The fox may now be guarding the henhouse, which is why we need an independent special counsel," Romero said in a statement.
Meanwhile, Vice President Dick Cheney delivered another strong defense of the program in an appearance before a friendly crowd at the Manhattan Institute in New York.
"These actions are within the president's authority and responsibility under the Constitution and laws, and these actions are vital to our security," said Cheney, emphasizing that the program is "a wartime measure."
Efforts such as the NSA eavesdropping have paid off, he added.
"It is no accident that we haven't been hit in more than four years," said Cheney, urging audience members to contact their representatives in Washington and weigh in on the NSA program.