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Senate Examines Domestic Spying Program

February 6, 2006 at 12:00 AM EST
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KWAME HOLMAN: Pennsylvania’s Arlen Specter, the Republican chairman of the Senate Judiciary Committee, has been skeptical of the legal underpinnings the Bush administration has offered for conducting electronic surveillance without a warrant.

SEN. ARLEN SPECTER: The Foreign Intelligence Surveillance Act was passed in 1978 and has a forceful and blanket prohibition against any electronic surveillance without a court order. That law was signed by President Carter with a signing statement that that was the exclusive way for electronic surveillance.

KWAME HOLMAN: And FISA, as Chairman Specter reminded at his committee hearing this morning, offers the government flexibility, allowing it to seek that court order up to 72 hours after the surveillance has begun.

SEN. ARLEN SPECTER: The foreign intelligence surveillance court has a great reputation for integrity — no leaks, candidly, unlike the Congress; candidly, unlike the administration; candidly, unlike all of Washington, perhaps all of the world.

KWAME HOLMAN: But in mid-December, the New York Times reported the president had gone outside of FISA and was using the National Security Agency to monitor international telephone calls placed from the U.S. to possible al-Qaida operatives.

Attorney General Alberto Gonzales was the lone witness before the committee today and outlined specific points on how the president’s surveillance program operated.

ALBERTO GONZALES: First, only international communications are authorized for interception under this program — that is, communications between a foreign country and this country.

Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of al-Qaida or an affiliated terrorist organization. As the president has said, “If you’re talking with al-Qaida, we want to know what you’re saying.”

Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.

KWAME HOLMAN: Gonzales then laid out a string of legal justifications for the program, one, that the Constitution allows it.

ALBERTO GONZALES: Under Article II, the president has the duty and the authority to protect America from attack. Article II also makes the president, in the words of the Supreme Court, “the sole organ of government in the field of international relations.”

KWAME HOLMAN: Gonzales also cited the use of force authorization Congress gave the president shortly after the Sept. 11 attacks.

ALBERTO GONZALES: First, Congress recognized the president’s inherent constitutional authority to combat al-Qaida. These inherent authorities, as I have explained, include the right to conduct surveillance of foreign enemies operating inside this country.

Second, Congress confirmed and supplemented the president’s inherent authority by authorizing him “to use all necessary and appropriate force against al-Qaida.”

KWAME HOLMAN: And the attorney general also referred to the Supreme Court’s 2004 Hamdi ruling allowing the United States to hold enemy combatants in custody.

ALBERTO GONZALES: A majority of the justices in Hamdi concluded that the broad language of the force resolution gave the president the authority to employ the traditional incidents of waging war.

If the detention of an American citizen who fought with al-Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to al-Qaida phone calls into and out of the country in order to disrupt their plots is not?

KWAME HOLMAN: But following Gonzales’ presentation, Chairman Specter still seemed unconvinced.

SEN. ARLEN SPECTER: You think you’re right, but there are a lot of people who think you’re wrong.

If we were really sure that you’re dealing only with the communication where you have a member of al-Qaida, an agent of al-Qaida, or an affiliated — affiliate of al-Qaida terrorist organization, it would be one thing, because the concern is that there is a broad sweep which includes people who have no connection with al-Qaida.

What assurances can you give to this committee and, beyond this committee, to millions of Americans who are vitally interested in this issue and following these proceedings?

ALBERTO GONZALES: I am told by the operations folks that to a great degree of certainty, a high degree of confidence, that these calls are solely international calls.

We have these career professionals out at NSA who are experts in al-Qaida tactics, al-Qaida communications, al-Qaida aims. They are the best at what they do, and they are the ones that make the judgment as to whether or not someone is on a call that is a member of al-Qaida or a member of an affiliate organization.

KWAME HOLMAN: The committee’s top Democrat, Patrick Leahy of Vermont, challenged Gonzales on his citing of the congressional force authorization as a legal basis for the president’s program.

SEN. PATRICK LEAHY: Now, this authorization is not a wiretap statute. I was a prosecutor; Sen. Specter was a prosecutor; a lot of other prosecutors here. We know what the wiretap statute looks like. This is not it.

So let me ask this: Under that logic, is there anything to stop you from wiretapping without a warrant somebody inside the United States that you suspect of having al-Qaida connections?

ALBERTO GONZALES: Clearly, Senator, that is not what’s going on here, first of all. The president has authorized a much more narrow program. We are always, of course, subject to the Fourth Amendment, so the activities of any of kind surveillance within the United States would, of course, be subject to the Fourth Amendment.

SEN. PATRICK LEAHY: Well, Mr. Attorney General, I — we’re getting the impression that this administration’s kind of picking and choosing what they are subject to. Can you show us in the authorization of use of military force what is the specific language you say that’s authorizing wiretapping of Americans without a warrant?

ALBERTO GONZALES: Sir, there is no specific language, but neither it is specific language to detain American citizens.

SEN. PATRICK LEAHY: Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open — can you open mail? Can you do black bag jobs?

ALBERTO GONZALES: Sir –

SEN. PATRICK LEAHY: And under the idea that you don’t have much time to go through what you described as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that of Americans?

ALBERTO GONZALES: Sir, I have tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.

SEN. PATRICK LEAHY: Did it authorize the opening of first class mail of U.S. Citizens? Just — that you can answer yes or no.

ALBERTO GONZALES: There is all kinds of wild speculation about what the –

SEN. PATRICK LEAHY: Did it authorize it?

SEN. ARLEN SPECTER: Let him finish.

ALBERTO GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we’re actually doing. And I’m not going to get into a discussion, Senator, about hypotheticals.

SEN. PATRICK LEAHY: Mr. Attorney General, you’re not answering my question. I’m not asking you what the president authorized. Does this law –you’re the chief law enforcement officer of the country. Does this law authorize the opening of first-class mail of U.S. citizens– yes or no– under your interpretation?

ALBERTO GONZALES: Senator, I think — I think that, again, that is not what is going on here. We’re only focused on communications — international communications where one part of the communication is al-Qaida. That’s what this program is all about.

SEN. PATRICK LEAHY: You haven’t answered my question.

KWAME HOLMAN: Alabama’s Jeff Sessions later added his strong defense of the surveillance program.

SEN. JEFF SESSIONS: We have absolutely not — we are not going hog-wild restraining American liberties. In fact, the trend has been to provide more and more protections. And there can be a danger that we go too far in that and allow sleeper cells in this country to operate in a way that they are successful in killing American citizens that could have been intercepted and stopped.

KWAME HOLMAN: And California Democrat Dianne Feinstein added her position.

SEN. DIANNE FEINSTEIN: I’d like to make clear that, for me, at least, this hearing isn’t about whether our nation should aggressively combat terrorism; I think we all agree on that. And it’s not about whether we should use sophisticated electronic surveillance to learn about terrorist plans and intentions and capabilities; we all agree on that. And it’s not about whether we should use those techniques inside the United States to guard against attacks; we all agree on that.

But this administration is effectively saying, and the attorney general has said it today, it doesn’t have to follow the law. And this, Mr. Attorney General, I believe, is a very slippery slope; it’s fraught with consequences.

KWAME HOLMAN: Illinois Democrat Dick Durbin said his objection was not to the president’s surveillance program but to its lack of checks and balances.

SEN. DICK DURBIN: It isn’t as if we’re not ready to cooperate with you. We would feel better about your conduct and the conduct of this administration if there was a law that you followed. We’re not asking you to spell out the operational details. But we’re asking you to have at least a FISA court judge, someone from another branch of government, taking a look at what you’re doing.

ALBERTO GONZALES: We have briefed congressional leaders and so they know what we’re doing.

SEN. DICK DURBIN: They are sworn to secrecy. Are they not?

ALBERTO GONZALES: This is a very classified, highly classified program.

SEN. DICK DURBIN: They were sworn to secrecy.

ALBERTO GONZALES: But –

SEN. DICK DURBIN: If they found the most egregious violation of civil rights in this program they are sworn not to say one word about it.

ALBERTO GONZALES: Senator, I’ve got to believe that all of us, we take an oath of office, and if we honestly believe that a crime is being committed that we would do something about it.

KWAME HOLMAN: Chairman Specter said he’ll schedule further hearings on the legal aspect of the program with witnesses who could include Former Attorney General Ashcroft and others who may have expressed reservations about it.