By Peter Baker and Charles Babington
Washington Post Staff Writers
Tuesday, December 20, 2005
The political uproar over President Bush's secret domestic spying program escalated yesterday as the president denied overstepping his constitutional bounds while congressional critics from both parties stepped up their attack and vowed a full investigation.
Bush mounted a vigorous defense of his order authorizing warrantless eavesdropping on overseas telephone calls and e-mail of U.S. citizens with suspected ties to terrorists. He contended that his "obligation to protect you" against attack justified a circumvention of the traditional process in a fast-moving, high-tech battle with a shadowy enemy.
"This is a different era, a different war," the president said at a year-end news conference in the East Room. "People are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent. I keep saying that, but this . . . requires quick action."
But Democrats and some key Republicans on Capitol Hill were unconvinced, and they questioned whether Bush has violated a law intended to prevent the government from spying on its citizens without court approval.
Voicing "grave doubts" over the legality of the National Security Agency program, Senate Judiciary Chairman Arlen Specter (R-Pa.) said he will conduct hearings next month on the issue. To rebut suggestions of congressional acquiescence, Sen. John D. Rockefeller IV (D-W.Va.) released a handwritten letter he secretly sent Vice President Cheney in July 2003 objecting to the program.
The dispute further fueled the debate over the USA Patriot Act, the measure bolstering the powers of law enforcement agencies that was passed shortly after the Sept. 11, 2001, attacks. The Senate yesterday again failed to muster the votes to end Democrat-led efforts to block legislation renewing the law, which expires Dec. 31. Bush angrily branded the filibuster "inexcusable" three times at his news conference but refused to accept a temporary extension.
"I want senators from New York or Los Angeles or Las Vegas to go home and explain why these cities are safer," Bush said. "It is inexcusable to say, on the one hand, 'connect the dots' and not give us a chance to do so."
The meeting with reporters was the latest effort in a presidential communications barrage intended to calm public nerves about the war in Iraq and woo back disaffected supporters; it came the morning after a prime-time Oval Office address and followed four other speeches, congressional briefings and a surprise trip to Iraq by Cheney. Bush once again counseled patience, saying that "2 1/2 years seems like an eternity, but in the march of history it's not all that long."
In the wide-ranging news conference, Bush demanded that the Senate confirm Samuel A. Alito Jr. to the Supreme Court by Jan. 20, even as Democrats vowed to question the nominee on his view of the NSA program. Bush acknowledged that the bungled intelligence on Iraq has made it harder to pressure Iran to drop any nuclear weapons aspirations. Looking ahead to 2006, he listed as a priority rebuilding the hurricane-ravaged Gulf Coast, and he expressed regret that some question whether he cares enough about black victims.
But the 56-minute session became dominated by the four-year-old NSA surveillance program, which was revealed last week by the New York Times. While generally relaxed and sometimes joking, Bush grew testy when asked if he is presiding over the expansion of "unchecked power" by the executive branch. "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject," he responded sharply, waving his finger.
Asked what limits he sees on a president's power in a time of war, Bush said a few key congressional leaders were briefed on the domestic spying program and his administration reviews its own actions periodically. "I just described limits on this particular program," he said. "That's what's important for the American people to understand. I am doing what you expect me to do, and at the same time safeguarding the civil liberties of the country."
Bush's remarks left many critics unassuaged and many questions unanswered. The president offered no details about how many people are under surveillance, what standard must be met to intercept communications or what terrorist plots have been disrupted as a result of the program.
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.