Spying program was justified, Congress told

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 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 Moschella. "That must be balanced, however, against the government's compelling interest in the security of the nation."

Bush has acknowledged that he authorized such surveillance and repeatedly has defended it in recent days. But Moschella's letter was the administration's first public notice to Congress about the program in which electronic surveillance was conducted without approval of a secret court created to examine requests for wiretaps and searches in sensitive terrorism and espionage cases.

Moschella maintained that Bush acted legally when he authorized the National Security Agency (NSA) to go around the court to conduct electronic 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.

The resolution "clearly contemplates action within the United States" and acknowledges Bush's power to prevent terrorism against the United States, Moschella wrote.

Congress adopted the resolution in the chaotic days after the Sept. 11, 2001, terrorist attacks, authorizing the president to wage war against al-Qaida and other terrorist groups.

However, in an opinion article in today's Washington Post, former Senate Majority Leader Tom Daschle, D-S.D., said Congress rejected a request from the Bush administration for war-making authority "in the United States."

The congressional resolution made no reference to surveillance or to the president's intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation. As drafted, and as finally passed, the resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons" who "planned, authorized, committed or aided" the Sept. 11 attacks.

"Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. ... I refused."

In his letter, Moschella said the president's constitutional authority also includes power to order warrantless surveillance inside the United States. He said that power has been affirmed by federal courts, including the secret Foreign Intelligence Surveillance Act (FISA) court.

The administration deliberately bypassed the FISA court, which requires 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 Bush's action was legal because the foreign intelligence law provides a "broad" exception if the spying is authorized by another statute. In this case, he said, Congress' authorization provided such authority.