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Justice Department offers legal basis for wiretaps

From Kevin Bohn and Bill Mears
CNN Washington Bureau

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President Bush authorized the National Security Agency to monitor some phone calls without seeking a warrant.

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WASHINGTON (CNN) -- The Justice Department has issued a detailed legal justification for President Bush's decision to order the National Security Agency's controversial domestic surveillance program.

The department's white paper said Thursday that the president has the legal authority to approve the program because of the power given to him in the Constitution to protect the country as well as in the post-9/11 authorization to use military force passed by Congress.

The administration has been on the defensive since reports revealed last month that Bush authorized the NSA shortly after the September 11, 2001, attacks to eavesdrop without a court warrant on people in the United States, including American citizens, suspected of communicating with al Qaeda members overseas.

Bush, Vice President Dick Cheney and Attorney General Alberto Gonzales have staunchly defended the program. (Watch Gonzales defend spying efforts -- 4:16)

"Congress by statute has confirmed and supplemented the president's recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent catastrophic attacks on the homeland," the Justice Department document said.

The White House has made similar arguments before to justify the surveillance, but this document provides more detail to support its case.

Critics argue the program is unconstitutional and say the president is exceeding his authority to authorize eavesdropping because to do so bypasses the Foreign Intelligence Surveillance Act of 1978. FISA requires a warrant for any surveillance done in the United States. (Watch former Vice President Al Gore hammer Bush -- 2:35)

The American Civil Liberties Union and the Center for Constitutional Rights filed lawsuits this week against the government to stop the program.

ACLU Executive Director Anthony Romero criticized the release of the new legal review.

"Any opinion coming from the Justice Department has to be viewed with a healthy dose of skepticism, given Attorney General Gonzales' involvement in the warrantless spying as White House counsel," he said in a written statement. "The fox may now be guarding the henhouse, which is why we need an independent special counsel."

He added, "Congress must hold open, substantive hearings to let the American public know how their privacy was invaded. The president must not use a claim of preserving the nation as justification to undermine the very principles that define our nation. Freedom, liberty and privacy must be protected and preserved."

Justice Department lawyers argued this program was part of the government's need to gather foreign intelligence, which does not explicitly require agents to go through the process of getting a warrant, as is required under the FISA law.

In a press briefing, Assistant Attorney General Steven Bradbury said the Justice Department believes the monitoring can be done legally outside the normal scope of the FISA law. He argued that the congressional authorization to use military force allows such surveillance since intercepting an enemy's communications is a key part of engaging in war.

"The government's interest in engaging in the NSA activities is the most compelling interest possible -- securing the nation from foreign attack in the midst of an armed conflict. One attack already has taken thousands of lives and placed the nation in state of armed conflict," the document said.

The Justice Department argued that this program does not violate the constitutional ban on unreasonable searches since it was part of the effort to thwart terrorism.

"The government's overwhelming interest in detecting and thwarting further al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy involved in intercepting one-end foreign communications where there is 'a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda or a member of an organization affiliated with al Qaeda.' "

Gonzales is scheduled to appear February 6 before the Senate Judiciary Committee, which will be examining the NSA program's legality.

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