WASHINGTON – Citing FBI abuses and the attorney general's troubles, senators peppered top Justice and intelligence officials Tuesday with skeptical questions about their proposal to revise the rules for spying on Americans.
Senate Intelligence Committee members said the Bush administration must provide more information about its earlier domestic spying before it can hope to gain additional powers for the future.
"Is the administration's proposal necessary, or does it take a step further down a path that we will regret as a nation?" asked Sen. Jay Rockefeller, D-V.Wa., as he convened a rare public hearing of the Senate Intelligence Committee he chairs.
For two hours, National Intelligence Director Mike McConnell, National Security Agency Director Lt. Gen. Keith Alexander, Assistant Attorney General Kenneth Wainstein and their lawyers tried to parry increasingly dubious and hostile questions. They deferred many answers to a committee session closed to the public.
With little apparent success, they portrayed the administration bill as merely an adjustment to technological changes wrought by cell phones, e-mail and the Internet since the Foreign Intelligence Surveillance Act was enacted in the 1970s. Under current rules, McConnell said, "We're actually missing a significant portion of what we should be getting."
But Sen. Sheldon Whitehouse, D-R.I., responded, "We look through the lens of the past to judge how much we can trust you." Like other senators, he said that trust was undermined by recent disclosure that the FBI had abused so-called National Security Letters to obtain information about Americans.
Whitehouse added another factor. "The attorney general has thoroughly and utterly lost my confidence," he said in reference to Attorney General Alberto Gonzales' shifting explanations for the dismissals of eight U.S. attorneys.
Rockefeller pressed a demand for documents in which he was joined by Republican vice chair Sen. Kit Bond of Missouri.
"There is simply no excuse for not providing to this committee all the legal opinions on the president's program," Rockefeller said.
The committee asked a year ago for Bush's order — and the Justice legal opinions supporting it — that directed the National Security Agency after the Sept. 11, 2001, attacks to eavesdrop without warrants on Americans believed to be in contact with terrorists.
Democrats and civil liberties and conservative groups complained that the directive violated the Foreign Intelligence Surveillance Act, which requires warrants from a secret court for intelligence surveillance of Americans. Bush agreed last January to put the program under the court's supervision.
In 2006, the surveillance court approved all but one request to eavesdrop on people in the United States, according to the Justice Department. The court approved a total of 2,176 warrants. The FISA court also approved 43 warrants allowing investigators access to business records of suspected terrorists and spies.
Even though the administration insists the warrantless wiretapping was legal under the president's constitutional powers, the administration bill contains a provision blocking lawsuits against telephone companies that cooperated. The administration has won most of the court battles so far over that spying, but one judge declared it illegal.
"Congress is being asked to enact legislation that brings to an end lawsuits that allege violations of the rights of Americans," Rockefeller said. "We cannot legislate in the blind."
The senators were not calmed by reassurances from the witnesses that the domestic wiretapping is still operating under the secret court's supervision.
"There is nothing in this bill that confines the president to work within" the surveillance act in the future, said Sen. Diane Feinstein, D-Calif. The same issue was raised by Sens. Ron Wyden, D-Ore., Russell Feingold, D-Wis., and Bill Nelson, D-Fla.
McConnell said the administration wants to work under the surveillance law now, but acknowledged "that does not mean the president would not use ... [constitutional powers] in a crisis."
"We want to go after the bad guys," Nelson said, "but we want to prevent the creation of a dictator who takes the law in his own hands." He said some senators and others legitimately believed Bush broke the law.
Earlier in the day, the Administrative Office of U.S. Courts reported that state prosecutors obtained a record number of criminal wiretap warrants last year to listen to more than 3 million phone conversations, mostly in drug cases. Federal prosecutors got only a third as many of these wiretaps, all in cases unrelated to terrorism.