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Varied Rationales Muddle Issue of NSA Eavesdropping

By Dan Eggen and Walter Pincus
Washington Post Staff Writers
Friday, January 27, 2006

President Bush said yesterday that he didn't seek congressional approval for a warrantless domestic eavesdropping program for one simple reason: He didn't need it.

"We believe there's a constitutional power granted to presidents as well as, this case, a statutory power," Bush said. "And I'm intending to use that power."

It is one of several explanations on the topic from Bush and his aides, who have provided at least two separate rationales for why they did not ask for statutory authority for the program. Attorney General Alberto R. Gonzales said the administration had considered seeking legislation but determined it would be impossible to get, adding later in the same news conference that authorities did not want to expose the program's existence. White House spokesman Scott McClellan has echoed the latter point, saying the administration feared that details of the classified program would be exposed publicly.

The subject is one of several elements in the NSA spying debate that have been clouded by apparent contradictions and mixed messages from the government since the program was revealed last month. The confusion has cleared up little in recent days, as the White House has embarked on a multi-pronged campaign to defend the legality of the controversial program.

Gonzales and other officials, for example, have repeatedly said that the Foreign Intelligence Surveillance Act (FISA), which governs secret surveillance in the United States, is too cumbersome to be applied to the NSA eavesdropping program. Yet the Justice Department raised concerns about a 2002 bill to loosen FISA requirements.

Before the program's existence was revealed, several administration officials also emphasized in testimony and public statements that the NSA was prohibited from engaging in domestic surveillance -- even as the agency was clearly doing so under the authority of Bush's secret order that established the program.

Many Democratic lawmakers and legal experts have seized on these and other issues in recent days to argue that the Bush administration has been misleading in its explanations of the NSA program.

Sen. Edward M. Kennedy (D-Mass.) said that the "after-the-fact spin we're hearing now is worthless." Senate Minority Leader Harry M. Reid (D-Nev.) issued a statement yesterday criticizing the administration for claiming that Congress had been fully briefed on the NSA program and for opposing the 2002 measure to loosen FISA standards.

The latter issue attracted particular criticism yesterday, as lawmakers and national security experts opposed to the program cast doubts on the administration's current legal rationale.

An amendment to FISA proposed by Sen. Mike DeWine (R-Ohio) would have lowered the standard to be met for authorizing surveillance of non-U.S. citizens, from "probable cause" to "reasonable suspicion" that the target was an agent of a terrorist group. The Justice Department did not offer support for DeWine's amendment because of "significant legal and practical issues," according to department statements.

Confusion over the issue deepened further yesterday after officials discovered two versions of a Justice statement on the legislation. One, which was posted on the Federation of American Scientists Web site and quoted in media reports, noted possible constitutional concerns. The other, held by the Senate intelligence committee, did not include that issue. Officials could not explain the disparity.

A Justice spokeswoman said this week that the previous opinion did not conflict with current legal justifications for the NSA spying because "probable cause" required under FISA is "essentially the same" as the standard used in the NSA program: "a reasonable basis to believe" that a target is linked to al Qaeda or an affiliate.

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.

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