NSA Spying Wider Than Believed

Report Says Agency Monitored Phone Networks Without Warrants

(CBS/AP) 
Former CIA Director Jim Woolsey said Friday the decision to undertake the monitoring is a "very tough and a very close call," but he comes out on the president's side.

"This is one where I think if anyone says it's a crystal-clear issue one way or another, that is the only position I regard as wrong," Woolsey said. "There are real values on both sides — privacy vs. security."

Yet Woolsey said the White House's argument that it was authorized to do this under Congress' joint resolution days after 9/11 is weak, and the president has to rely on his inherent power under Article II of the Constitution.

Because of threats from group's like al Qaeda and Hezbollah, he said, "we are going to have to take some steps in the war on terror that we did not have to take in the Cold War."

In his letter, Moschella relied on the Sept. 18, 2001, congressional resolution, known as the Authorization to Use Military Force, as primary legal justification for Mr. Bush's creation of a domestic spying program. The resolution "clearly contemplates action within the United States," Moschella wrote, and acknowledges Mr. Bush's power to prevent terrorism against the United States.

Congress adopted the resolution in the chaotic days after the Sept. 11, 2001, terrorist attacks, authorizing the president to wage war against al Qaeda and other terrorist groups that pose a threat to the United States.

Moschella said the president's constitutional authority also includes power to order warrantless foreign intelligence surveillance inside the United States. He said that power has been affirmed by federal courts, including the secret Foreign Intelligence Surveillance Act court. The FISA court was created in 1978 after public outcry over government spying on anti-war and civil rights protesters.

The administration deliberately bypassed the FISA court, which requires the government to provide evidence that a terrorism or espionage suspect is "an agent of a foreign power."

Moschella said Mr. 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.

He also maintained the NSA program is "consistent" with the Fourth Amendment — which prohibits unreasonable searches and seizures — and civil liberties.

For searches to be reasonable under law, a warrant is needed, Moschella said. But, outside criminal investigations, he said, the Supreme Court has created exceptions where warrants are not needed.