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Varied Rationales Muddle Issue of NSA Eavesdropping
But Timothy H. Edgar, a national security lawyer at the American Civil Liberties Union, also said the NSA program clearly operates under a lower legal standard allowed only in limited circumstances, such as when police to frisk suspicious people on the street.
"That's never been considered acceptable for searching someone or listening to their telephone," Edgar said.
Bush and his top aides have repeatedly stressed that "Congress" had been briefed on the program over the past four years, but have often neglected to mention that the briefings were limited to the "Gang of Eight": the speaker and minority leader of the House; the majority and minority leaders of the Senate; and the chairmen and ranking Democrats on the two intelligence committees. And they were barred from taking notes or discussing what they heard with other lawmakers or their staffs.
Sen. John D. "Jay" Rockefeller IV (D-W.Va.), who as vice chairman of the Senate intelligence panel was briefed in 2003, took the unusual step of sending Vice President Cheney a classified letter voicing his concerns about the program and the lack of oversight on how it was being carried out. Several other prominent Democrats have also questioned the program's legality since it was made public, including Reid, House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jane Harman (D-Calif.), ranking minority member of the House intelligence committee.
Yet Dan Bartlett, counselor to Bush and White House communications director, said Monday that the lawmakers who had been briefed "believed we are doing the right thing" and that Democratic leaders "briefed on these programs would be screaming from the mountaintops" if they thought the program was illegally eavesdropping on Americans.
Some critics, including a group of relatives of victims of the Sept. 11, 2001, attacks, have also focused on previous statements by Gen. Michael V. Hayden -- the deputy intelligence director who formerly headed the NSA -- that now appear to be, at best, incomplete.
For example, Hayden and other NSA staff members told the House-Senate inquiry into the attacks that "they do not want to be perceived as focusing NSA capabilities against U.S. persons in the United States," said the panel's report. "The Director and his staff were unanimous that lessons NSA learned as a result of Congressional investigations during the 1970's should not be forgotten."
Hayden suggested similar limitations in an appearance before the House intelligence committee in October 2002, telling Porter J. Goss, then the committee chairman, that the NSA "would have no authorities" to pursue Osama bin Laden if he entered the United States. The NSA program was at least a year old by that time, and Goss -- now the CIA director -- was one of the few members of Congress briefed on it. Experts also say Hayden was wrong to suggest that bin Laden would enjoy the same legal protections as U.S. citizens or residents.
Staff writers Carol D. Leonnig and Dafna Linzer and researcher Julie Tate contributed to this report.