Justice Department defends NSA spying

Associated Press
Published December 23, 2005

WASHINGTON - The Bush administration formally defended its domestic spying program in a letter to Congress late Thursday, saying the nation's security outweighs privacy concerns of individuals who are monitored. In a letter to the chairs of the House and Senate intelligence committees, the Justice Department said President Bush authorized electronic surveillance without first obtaining a warrant 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."

Bush has acknowledged he authorized such surveillance and has defended it in recent days. 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 secret court created to examine requests for wiretaps and searches in the most sensitive terrorism and espionage cases.

Moschella said Bush acted legally when he authorized the National Security Agency to go around the court to conduct surveillance of international communications into and out of the United States by suspects tied to al-Qaida or its affiliates.

Moschella relied on a Sept. 18, 2001, congressional resolution, known as the Authorization to Use Military Force, as primary legal justification for Bush's creation of a domestic spying program. He said Bush's powers as commander-in-chief give the president "the responsibility to protect the nation."

The resolution "clearly contemplates action within the United States," Moschella wrote, and acknowledges Bush's power to prevent terrorism against the United States. Congress adopted the resolution after the Sept. 11, 2001, terrorist attacks, authorizing Bush to wage war against terrorist groups that pose a threat to the United States.

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 FISA court was created in 1978 after public outcry over government spying on anti-war and civil rights protesters.

Bush deliberately 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. Moschella said the law provides a "broad" exception if the spying is authorized by another statute.

Moschella also said the NSA program is "consistent" with the Fourth Amendment, which prohibits unreasonable searches and seizures. Outside criminal investigations, Moschella said, there are exceptions where warrants are not needed.