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Bush administration lays out its legal rationale for domestic spying

WASHINGTON—Safeguarding the security of the United States outweighs individuals' rights to privacy, the Bush administration asserted on Friday in a letter to Congress defending a top-secret operation that has been eavesdropping on Americans without court authorization.

The five-page letter laid out the administration's legal rationale for the program in the most explicit terms since the four-year-old effort to avert new attacks by al-Qaida or other terrorist groups in the country was disclosed by The New York Times and confirmed by President Bush last week.

"There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the president," Assistant Attorney General William Moschella wrote to the top Republicans and Democrats on the House of Representatives and Senate intelligence committees. "That must be balanced, however, against the government's compelling interest in the security of the nation."

Moschella said the Constitution and a 2001 congressional resolution authorizing the use of force to fight terrorism gave Bush the power to order the National Security Agency to monitor Americans without seeking warrants from a secret federal court that oversees the 1978 Foreign Intelligence Surveillance Act, or FISA.

Experts said that advanced technologies that allow terrorist-hunting intelligence agencies to rapidly screen colossal volumes of telephone calls and e-mails have outgrown the law.

Commercially available supercomputers and communications technologies can be used to monitor millions of calls and e-mails, trace the numbers and computers that send and receive them and screen them for terrorism-related keywords.

The conversations can also be run through voice-recognition programs that can match the callers to known or suspected terrorists.

But to conduct such a vast operation, the Bush administration would have had to obtain authorization from the secret FISA court. And that would have been unlikely because of the huge numbers of innocent Americans swept into the massive electronic net.

So in his determination to avert a repeat of the Sept. 11, 2001, attacks, Bush decided to allow the National Security Agency to monitor Americans without obtaining FISA warrants.

"The program is to detect and prevent" terrorist attacks, Air Force Gen. Michael Hayden, the deputy national intelligence director, said Monday. "It's a quicker trigger. It's a subtly softer trigger."

"FISA involves marshalling arguments. FISA involves looping paperwork around," said Hayden, who was NSA director when the top-secret surveillance operation began four years ago. "The difference in the two sets of authorities are such that we can provide greater protection for the nation operating under (Bush's) authorization."

Confirmation of the program has triggered outrage among Democrats and some Republicans, the resignation of a judge from the secret FISA court, calls for investigations and charges that Bush broke the law.

Bush has said he intends to continue authorizing the program. He said it only targets international communications by Americans in the United States suspected of belonging to or supporting al-Qaida or its affiliates, and has helped prevent terrorist attacks.

Under FISA, federal officials must seek a warrant to eavesdrop on an American. They must give the secret FISA court the name of their target and show there is "probable cause" to believe the person is an "agent of a foreign government" or a terrorist group.

Attorney General Alberto Gonzales disclosed this week that under the president's decision, such surveillance could be carried out when there is a "reasonable basis" to suspect someone is linked to a terrorist group, a much lower legal standard than probable cause, according to experts.

"Who determines the `reasonable basis'? What exactly does that mean?" said Michael J. Woods, the FBI's chief of national security law from 1999 to 2002.

The lower standard would allow the government to engage in the equivalent of electronic fishing expeditions based on an educated guess, experts said.

Rep. Peter Hoekstra, R-Mich., the chairman of the House Intelligence Committee and one of four lawmakers briefed on the NSA program, said Wednesday that it involved a new system designed to track al-Qaida operatives or supporters in the United States.

Such an eavesdropping operation could be conducted with commercially available supercomputers and communication technologies in real time, said Russell Tice, a former NSA specialist in satellite communications.

Off-the-shelf technology can rapidly identify U.S. telephone numbers receiving or placing satellite-relayed overseas calls and the foreign numbers that are placing calls to or receiving calls from the United States.

Commercial technology also could record the conversations and then rapidly screen them for words that might indicate that they involved terrorism, Tice said.

The numbers could be run against databases of numbers associated with terrorist groups, members or suspects. When matches are made, the conversations associated with those numbers could be run against programs that could determine if the voices are those of known or suspected terrorists.

"This is all unclassified technology. If this technology was used by an intelligence organization, then it all becomes classified," said Tice, who declined to discuss the NSA's classified monitoring systems.

The problem, he said, is that such a powerful system would inevitably "suck up" communications by innocent Americans who used keywords in casual conversations.

"Aunt Molly says the word terrorism totally innocently. Bing. All of a sudden the computer hits the keyword and it immediately isolates that conversation. It records everything Aunt Molly says and her number. That information is then gone through by another system and there is more filtering. Now they want to plug a name to it," explained Tice. "But in this scenario you've already gone beyond FISA."

The FISA court would likely refuse warrants in these circumstances—even under a provision that allows 72 hours of emergency eavesdropping before authorization is sought retroactively—because of the requirements that targets be identified and probable cause given to suspect that they are terrorists or their associates, they said.

"They have yet to answer: Why didn't you go to FISA court?" said Daniel Solove, a professor at George Washington University law school. "It could be that the administration thought it couldn't meet some of the FISA standards." He called the White House's actions "incredibly troubling."

Bush and others have suggested that FISA is meant for long-term monitoring and isn't flexible enough to deal with today's terrorist threat. But Solove and other legal experts say that the administration hasn't adequately explained why it chose to go around an approval process crafted by Congress that was intended to be permissive.

In letters earlier this week to the chairmen of the Senate and House intelligence committees, Tice requested meetings under a whistleblower's protection law so he might detail to their staffs how "probable unlawful and unconstitutional acts" were committed by the NSA surveillance program because it violates FISA.

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(c) 2005, Knight Ridder/Tribune Information Services.

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