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Administration defends NSA eavesdropping to Congress

Letter: Secret court lacks 'speed and agility required'

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WASHINGTON (CNN) -- Justice Department lawyers have sent a letter to key congressional leaders providing legal arguments they say justify President Bush's decision to authorize the National Security Agency to intercept communications between people in the United States and potential terrorist contacts abroad.

The five-page letter, sent late Thursday to House and Senate Intelligence committee chairmen and their Democratic counterparts, asserts that national security interests must be paramount when weighing the interests of security and privacy.

The letter, signed by Assistant Attorney General William Moschella, repeats administration reliance on Article II of the Constitution, which gives the commander in chief authority to protect the nation, and the post-9/11 law that authorized the president to take steps against al Qaeda.

The letter reiterates the president's contention that the court set up by the Foreign Intelligence Surveillance Act, or FISA, could not have been used to seek intercepts in cases where time was critical.

"FISA could not have provided the speed and agility required for the early warning detection system," the Justice Department letter argued.

"Nevertheless I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations," it said.

The Justice Department apparently was designated to assure Congress that the administration was not violating privacy rights as critics in both parties have charged.

"There is undeniably an important and legitimate privacy interest at stake," the letter said. "That must be balanced, however, against the government's compelling interest in the security of the nation."

The letter was sent to Sens. Pat Roberts, R-Kansas, and John Rockefeller, D-West Virginia, and to Reps. Peter Hoekstra, R-Michigan, and Jane Harman, D-California.

During his end-of-year press conference Monday, Bush called the NSA eavesdropping program essential, saying it was limited to international communication to known terrorists and their associates.

"We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives," Bush said.

But Democrats and Republicans have questioned the legality of the program, and some lawmakers have called for an independent investigation or congressional hearings.

Sen. Russ Feingold, D-Wisconsin, said Sunday that he believes Bush's action violated the law.

"[The Foreign Intelligence Surveillance Act] says it's the exclusive law to authorize wiretaps," Feingold said. "This administration is playing fast and loose with the law in national security. The issue here is whether the president of the United States is putting himself above the law, and I believe he has done so."

Sen. Jack Reed, D-Rhode Island, said the president could have gone back to a FISA court after the wiretaps if he was concerned about speed.

"I'm just stunned by the president's rationales with respect to the illegal wiretapping," Reed said. "There are two points that have to be emphasized with respect to the FISA procedure: They're secret, and they're retroactive.

"There is no situation where time is of such an essence they can't use the FISA proceedings. And so the president's justification, I think, is without merit."

CNN's Terry Frieden contributed to this report.

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