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Justice Dept. backs Bush's spy powers

Cites wartime as justification

WASHINGTON -- The Bush administration argued yesterday that the president has inherent war powers under the Constitution to order warrantless eavesdropping on the international calls and e-mails of US citizens and others in this country, offering the administration's most detailed legal defense of its surveillance program to date.

The Justice Department's lengthy legal analysis also asserts that if a 1978 law that requires court 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.

Many specialists on intelligence and national security law 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 legal justifications were laid out in a 40-page white paper sent to Congress by Attorney General Alberto Gonzales yesterday.

Gonzales asserted that the president's power to protect the country with surveillance was reaffirmed when Congress passed an October 2001 resolution that authorized the president to use military force against Al Qaeda and to deter future terrorist attacks.

''The program was designed to be protective of civil liberties," Steven Bradbury, acting assistant attorney general for the department's Office of Legal Counsel, said yesterday in a briefing with reporters. ''It's not a blank check that says the president can do whatever he wants."

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 attacks of Sept. 11, 2001. Senate Judiciary Committee chairman Arlen Specter, Republican of Pennsylvania, has also announced plans to hold hearings.

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

A second CRS report, released Tuesday, concluded that 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 on Tuesday, two civil liberties groups, the American Civil Liberties Union and the Center for Constitutional Rights, filed separate lawsuits challenging the program.

Yesterday, ranking Democrats on the Senate and House intelligence committees, Senator Jay Rockefeller of West Virginia and Representative Jane Harman of California, along with Senate minority leader Harry Reid of Nevada and House minority leader Nancy Pelosi of California, sent a letter to Vice President Dick Cheney demanding that the full committee be briefed on such intelligence activities in the future.

In its legal analysis, the Justice Department contends that ''the broad language" of Congress's authorization to use force affords the president, ''at a minimum, the discretion to employ the traditional incidents of the use of military force," including the warrantless surveillance program.

But James Bamford, a specialist on US intelligence and author of two books considered primers on the NSA, said the Justice Department's arguments are refuted by Congress's clear intent in 1978 to block warrantless surveillance and by its lack of intent to suggest such surveillance in October 2001.

''You could review the entire legislative history in the authorization to use military force and I guarantee you won't find one word about electronic surveillance," Bamford said.

Anthony Romero, ACLU executive director, said the president and Gonzales are manufacturing legal justifications, and the program remains in violation of the constitutional amendments protecting free speech and privacy.

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