Raw Story acquired a draft of an official Department of Justice memorandum that gives the legal justifications for the warrantless NSA intercepts authorized by the President. Raw Story has the PDF as a link on its site, but in the interest of splitting the bandwidth investment, I'll host it here as well. Readers who have followed the story here as well as at Power Line or The Volokh Conspiracy won't find anything terribly surprising, but those who have not followed the actual legal arguments might find themselves surprised just how much supporting precedent exists for the authorization and subsequent approvals by the Attorney General.

The text of the summary includes these arguments:

As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (“NSA”) to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. This paper addresses, in an unclassified form, the legal basis for the NSA activities described by the President (“NSA activities”).

On September 11, 2001, the al Qaeda terrorist network launched the deadliest foreign attack on American soil in history. Al Qaeda’s leadership repeatedly has pledged to attack the United States again at a time of its choosing, and these terrorist organizations continue to pose a grave threat to the United States. In response to the September 11th attacks and the continuing threat, the President, with broad congressional approval, has acted to protect the Nation from another terrorist attack. In the immediate aftermath of September 11th, the President promised that “[w]e will direct every resource at our command—every means of diplomacy, every tool of intelligence, every tool of law enforcement, every financial influence, and every weapon of war—to the destruction of and to the defeat of the global terrorist network.” President Bush Address to a Joint Session of Congress (Sept. 20, 2001). The NSA activities are an indispensable aspect of this defense of the Nation. By targeting the international communications into and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the United States with an early warning system to help avert the next attack. For the following reasons, the NSA activities are lawful and consistent with civil liberties.

The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.

Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of communications described by the President falls within a well-established exception to the warrant requirement and satisfies the Fourth Amendment’s fundamental requirement of reasonableness. The NSA activities are thus constitutionally permissible and fully protective of civil liberties.

The memorandum runs 42 pages and proceeds from this summary to highlight each of these precedents and explain in detail their application to the question at hand. Lawyers will find nits to pick on individual application of laws and precedents, but the overall argument shows that the White House relied on a well-established series of laws, precedents, and interpretations of Constitutional authority to conclude that they not only had the authority to order the NSA program, but that failing to do so may have been a dereliction of their duty while under attack from an outside force. It also shows that far from relying on a concept of an "imperial presidency", the White House carefully considered the laws and precedents guiding this activity and tailored the program to meet it -- and when the AG felt that the program needed changes to continue to meet its legal obligations, the administration suspended the program until those changes could be implemented and an auditing process put in place.

In short, the White House makes a good case, and at the very least deserves the benefit of the doubt on legality.

UPDATE: The Washington Post reports on this memorandum in this article by Carol D Leonnig, which notes that the Congressional Research Service provided an analysis of the law and came up with a different conclusion:

In the past two weeks, the nonpartisan Congressional Research Service has released two reports suggesting significant legal flaws in the president's program. One analysis concluded that the warrantless surveillance effort directly conflicts with Congress's intentions in passing the FISA law. It also found that the rest of the administration's legal justifications were "not as well-grounded" as the administration asserted.

A second CRS report, released Tuesday, concluded that the administration appears to have violated a national security law by failing to brief the full House and Senate intelligence committees on the program in 2001. The administration limited its briefings instead to the two most senior members on each committee.

However, like the New York Times, the Post fails to report that the CRS anayses were prepared by Alfred Cumming -- the same Alfred Cumming who gave John Kerry $1,250 for his run against George Bush in the 2004 election cycle, as first reported by Tom Maguire. Leonnig also includes some questionable quotes in opposition to this memorandum:

"You could review the entire legislative history in the authorization to use military force and I guarantee you won't find one word about electronic surveillance," Bamford said. "If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again."

To do exactly what again? Bell wanted FISA to keep a president from snooping on domestic political opponents again, not from conducting wartime espionage against an enemy that Congress specifically tasked the Executive to fight. And if the entire legislative history of the United States cannot come up with a single reference to electronic surveillance and intelligence during wartime, then (a) the silence makes it legal, not illegal, and (b) it just proves that Congress doesn't have a lot of expertose in warfare. How long have we had wireless communications now -- a century? Does Bamford argue that breaking the Japanese diplomatic and military codes during World War II somehow constitutes a felony, since according to Bamford the legislature never considered it as part of a military effort during wartime?

Foolishness such as this will leave us all woefully unprotected for the next terrorist attack -- after which we'll appoint another commission that will take three years and tell us we should have done what Bush has done all along. I'd rather skip the part where we get attacked and just continue with the program at hand.

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