Published February 07, 2006
WASHINGTON – President Bush's terrorism surveillance program is well within the boundaries of presidential authority in the time of war and it "may make the difference between success and failure" in stopping the next terrorist attack, Attorney General Alberto Gonzales told lawmakers on Monday.
"As the president has said, if you're talking to Al Qaeda, we want to know it," Gonzales testified before the Senate Judiciary Committee.
Democrats, meanwhile, are accusing the administration of depriving Congress of information about the program and say the program is illegal. Judiciary Committee Chairman Arlen Specter, R-Pa., has called Gonzales' legal explanations "strained and unrealistic."
"The terrorist threat to America's security remains very real. We should have the tools necessary to protect America's security," Vermont Sen. Patrick Leahy said, adding that that is why Congress passed the USA Patriot Act and why the 1978 Foreign Intelligence Surveillance Act, which outlined the use of wiretaps, has been amended several times since Sept. 11, 2001.
"You cannot violate the laws or the rights of ordinary Americans … in America, our America, nobody is above the law, not even the president of the United States," Leahy added. "I think you are violating expressed provisions of the [Foreign Intelligence Surveillance] Act."
Gonzales argued that the program that has come under fire since the New York Times published details of it late last year is legal, despite critics' claims. He said federal appeals courts have ruled that warrantless wiretaps are legal under the Fourth Amendment when authorized by the president on similar matters.
Legislation passed after the Sept. 11, 2001, attacks, giving the president the authority to use military force in the War on Terror, "calls on the president to protect Americans both 'at home and abroad,'" and "to take action to prevent further terrorist attacks 'against the United States,'" Gonzales said.
The NSA program is "well within the mainstream" of what previous courts have allowed, he added.
"Our enemy is listening and I can't help but think they're shaking their heads in amazement" that details of the secret program were leaked in the first place, he continued, and that people would actually be calling for disarmament of a program that has helped thwart attacks on U.S. soil.
"I wish that there were more we could tell, it's not simply a coincidence the United States of America has not been hit again since 9/11 … it's because of tools like the Patriot Act, it's because of tools like the terrorist surveillance program," Gonzales added.
He reiterated the administration's stance that the president has the legal authority to authorize the National Security Agency to conduct some wiretaps on people inside the United States for two reasons: The Constitution allows it, as does Congress' post-Sept. 11 resolution authorizing the president to use all necessary and appropriate force in combating Al Qaeda.
Under the program, the secret NSA — which traditionally conducts domestic surveillance overseas — is allowed to wiretap some individuals inside the United States if they are suspected of communicating with someone linked to Al Qaeda or other terror groups abroad. The program does not allow for monitoring of domestic calls where both parties to the communication are within the United States.
"I think people who call this a 'domestic' surveillance program is doing a great disservice to this country," Gonzales said. "That's be like flying from Houston to Poland and saying that's domestic."
A former Texas judge, Gonzales played a key role as White House counsel in developing the legal justification for the surveillance program. He served in that post from January 2001 to February 2005.
Monday's hearing began with a squabble between Specter and some Democrats about whether Gonzales should be sworn in. Specter said it was unnecessary, saying he has "examined all the facts" and law and "it is my judgment that it is unnecessary to swear [in] the witness."
He also said Gonzales didn't mind if he was sworn in but that it is up to the chairman to decide. Democrats then demanded a vote; Republicans won the vote but Russ Feingold, D-Wis., then demanded to see the proxy votes of Republican senators not present, who Specter said would support his position.
Leahy, Feingold and others argued that Gonzales should be sworn in since some of the questions he would be asked would be in regard to statements he made under oath during his confirmation hearings.
"This is really not a very good way to begin this hearing but I've found that patience is a good practice here," Specter said.
"I'm very disappointed that we went through this process," Sen. Jeff Sessions, R-Ala, added.
Meanwhile, Republicans blasted whoever was responsible for leaking details of the program to the media, saying it has put the country in a precarious position.
"These leaks could be putting our nation in serious jeopardy," said Sen. Charles Grassley, R-Iowa. "I don't hear as much public outcry about this leak than I did about Valerie Plame ... and the presumed disclosure of her identity as a CIA agent and to me, that's a two-bit nothing to this."
He also questioned why, if there is such a legal problem with the NSA program, no one who was briefed on it came forward with concerns when it first began.
"If something was wrong after the New York Times reported on it, there must've been something wrong before the New York Times reported it," Grassley said. "I think we in Congress need to do some, some internal looking at whether or not we're doing our job as well as oversight."
Gonzales: Surveillance Program 'Indispensable'
Gonzales called the monitoring program "reasonable" and "lawful," Gonzales said: "Al Qaeda's leaders have repeatedly made good on their threats, and Al Qaeda has demonstrated its ability to insert foreign agents into the United States to execute attacks."
"In confronting this new and deadly enemy, President Bush 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 disruption of and to the defeat of the global terror network.' ...The terrorist surveillance program described by the president is one such tool and one indispensable aspect of this defense of our nation."
He lashed out at the news media for stories he called often "misinformed, confused or wrong."
"As the president has explained, the terrorist surveillance program operated by the [electronic-monitoring National Security Agency] requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack."
He also said the program expires every 45 days and is only reauthorized upon recommendations of intelligence officials and only if they determine that Al Qaeda continues to pose a threat to America. Gonzales also took aim at Democrats who say they were not sufficiently informed of the NSA activities.
Congressional intelligence committees have known about this program for years, he said, as have other key lawmakers involved in intelligence activities; the administration says eight lawmakers know the ins and outs of the program.
"During the course of these briefings, no members of this Congress asked that this program be discontinued," Gonzales added.
Added presidential spokesman Scott McClellan during a White House briefing: "This is something that we've briefed members of Congress on over the course of the last several years. We will continue to brief members of Congress about this vital program."
Gonzales said he could not discuss how the program works. "An open discussion of the operational details of this program would put the lives of Americans at risk," he said.
"Congress and the American people are interested in two fundamental questions: Is this program necessary and is it lawful. The answer to both questions is 'yes.' The question of necessity rightly falls to our nation's military leaders, because the terrorist surveillance program is an essential element of our military campaign against Al Qaeda."
What's raising the ire of many in Congress is that the program does not require warrants for such monitoring if terrorists are suspected of being involved. That means that the FISA court established to review such warrants under FISA is not consulted before the monitoring begins.
"We are continuously looking at ways we can work with the FISA court in being more efficient, more effective in fighting the War on Terror," Gonzales said, repeatedly stressing that FISA is still being used and that its use actually increased 18 percent from 2004-2005.
Gonzales and other administration officials argue that going through the FISA court would have been too cumbersome and slow; critics counter that even the FISA court allows an emergency, warrantless search so long as the government gets after-the-fact approval. But that still requires mountains of paperwork, signatures and time lost, Gonzales said.
"All of these steps take time. Al Qaeda, however, does not wait," he said. "Just as we can't demand our soldiers bring lawyers onto the battlefield … we can't afford to impose layers of lawyers on top of career intelligence officers ... [who are] tracking secret Al Qaeda operatives in real time."
But Specter said even the Supreme Court ruled that "the president does not have a blank check" and suggested that the program's legality be reviewed by the FISA court.
"There are a lot of people who think you're wrong. What do you have to lose if you're right?" Specter asked Gonzales.
Gonzales noted that Bush is not the first president to exert such authority and he pointed out Clinton administration Deputy Attorney General Jamie Gorelick testified in 1994 that the president has inherent constitutional authority to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.
Dems: We're Taking a 'Risk'
Leahy gave the administration a message about laws it believes hinder the War on Terror.
"Under our Constitution, Congress is the co-equal branch of government to make the law. If you believe you need new laws, come and tell us," Leahy said.
"We've supported this president with every dollar he's asked for to support terrorism ... why didn't you work with us to make the law more stronger and more effective when you had a bipartisan Congress behind you?" asked Sen. Richard Durbin, D-Ill.
Democrats emphasized that they take a back seat to no one when it comes to national security, and they aren't going to fall into any Republican trap that asking questions about a questionably illegal program is similar to handing the terrorists our playbook, one Democratic aide told FOX News.
"What the administration has said is when it comes to national security, the problem is that the Democrats have a pre-9/11 view of the world," Feingold said. "The real problem is that the president seems to have a pre-1776 view of the world, that's the problem. All of us are committed to defeating the terrorists who are threatening this country, Mr. Attorney General, that is our top priority."
Sen. Edward Kennedy, D-Mass., who was the principle author of FISA, thinks the NSA program is harmful because by ignoring FISA, national security is actually weakened and the intelligence officials who are working on the program could go to jail for breaking the law if the president does not have the legal authority for the program.
Kennedy argued that such a program raises the risk that terrorists go free if the evidence against them is obtained via a program not sanctioned by law.
"We're taking a risk with national security which I think is unwise," Kennedy said. "We have to get it right because if we don't get it right, we are going to find that we will pay a very tough price for it."
Gonzales responded by saying: "We don't believe prosecutions are going to be jeopardized because of this program."
News accounts have suggested the program vacuums up vast amounts of communications and sifts through them for possible links to terrorists. But Gen. Michael Hayden, the nation's No. 2 intelligence official, rejected that, and said on "FOX News Sunday" that the NSA first establishes a reason for being interested in the calls or e-mails. Bush himself also has said probable cause is given before someone is wiretapped.
"This isn't a drift net over Lackawanna (N.Y.) or Fremont (Calif.) or Dearborn (Mich.), grabbing all communications and then sifting them out," Hayden said of three U.S. cities with sizable Muslim populations. "This is very specific and very targeted."
The Judiciary Committee's Democrats also want Specter to call more administration officials for questioning, including former Attorney General John Ashcroft and ex-Deputy Attorney General Jim Comey. Comey reportedly objected to parts of the program.
FOX News' Liza Porteus and Trish Turner and The Associated Press contributed to this report.