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Bush Addresses Uproar Over Spying
Nor did he explain why the current system is not quick enough to meet the needs of the fight against terrorism. Under the Foreign Intelligence Surveillance Act, the NSA in urgent situations can already eavesdrop on international telephone calls for 72 hours without a warrant, as long as it goes to a secret intelligence court by the end of that period for retroactive permission. Since the law was passed in 1978 after intelligence scandals, the court has rejected just five of 18,748 requests for wiretaps and search warrants, according to the government.
Air Force Gen. Michael V. Hayden, who was NSA director when the surveillance began and now serves as Bush's deputy director of national intelligence, said the secret- court process was intended for long-term surveillance of agents of an enemy power, not the current hunt for elusive terrorist cells.
"The whole key here is agility," he said at a White House briefing before Bush's news conference. According to Hayden, most warrantless surveillance conducted under Bush's authorization lasts just days or weeks, and requires only the approval of a shift supervisor. Hayden said getting retroactive court approval is inefficient because it "involves marshaling arguments" and "looping paperwork around."
In asserting the legality of the program, Bush cited his power under Article II of the Constitution as well as the resolution authorizing force passed by Congress after the Sept. 11 attacks. The resolution never mentions such surveillance, but Attorney General Alberto R. Gonzales said it is implicit and cited last year's Supreme Court decision in Hamdi vs. Rumsfeld , which found that the force resolution effectively authorized Bush to detain U.S. citizens indefinitely as enemy combatants. But the same ruling held that detainees are entitled to challenge their imprisonment in court.
"This is not a backdoor approach," Gonzales said at the White House. "We believe Congress has authorized this kind of surveillance." He acknowledged that the administration discussed introducing legislation explicitly permitting such domestic spying but decided against it because it "would be difficult, if not impossible" to pass.
Bush and Gonzales maintained that the program is not unchecked because select congressional leaders have been briefed on it more than a dozen times. But several of those who received classified briefings objected yesterday that it hardly constituted oversight. In fact, those lawmakers said they were sworn to secrecy, barred from disclosing the program even to their colleagues and staff, and therefore unable to block the president's actions.
Rockefeller, ranking Democrat on the Senate intelligence committee, released his 2003 letter to Cheney to make the point that he had "profound" concerns at the time but could not act on them. He said he kept a copy in a sealed envelope ever since to preserve a record of his views. Complaining about seeing Bush and his aides "repeatedly misrepresent the facts," he demanded "a full investigation" by his panel.
Senate Minority Leader Harry M. Reid (D-Nev.) and his predecessor, Thomas A. Daschle (D-S.D.), said yesterday that they had been briefed on the program and were not asked for their advice or consent.
Reid added that "key details about the program apparently were not provided to me," and Daschle said he voiced concern at the time. "I am surprised and disappointed that the White House would now suggest that none of us informed of the program objected," he said in a statement.
Specter was briefed for the first time by Gonzales on Sunday night and vowed to seek more information. "I have grave doubts about the wide scope of executive power claimed by Attorney General Gonzales," he said in an interview. Despite Gonzales's reassurances, Specter said, "I'm far from being satisfied."
Several senators pressed the matter further. Specter and Sen. Patrick J. Leahy (D-Vt.) sent letters to Alito promising to grill the nominee on the issue at confirmation hearings next month. Sen. Russell Feingold (D-Wis.) raised the prospect of a special prosecutor investigation and said Gonzales would have to recuse himself. Sen. Barbara Boxer (D-Calif.) sent an inquiry to presidential scholars asking if they agree with John Dean, the White House counsel during Watergate, who she quoted as saying that Bush has admitted to an impeachable offense.
But Bush had a different investigation in mind. At his news conference, he said that although he had not issued an order, he presumed the Justice Department has opened an inquiry into who leaked the information about the NSA program. "It was a shameful act for someone to disclose this very important program in a time of war," he said. "The fact that we're discussing this program is helping the enemy."
Staff writer Jim VandeHei and researcher Julie Tate contributed to this report.