Compromise on Spying

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Tuesday, February 7, 2006

SENATORS SEEKING to learn more about the Bush administration's warrantless surveillance of Americans didn't get much satisfaction yesterday from Attorney General Alberto R. Gonzales. During a day-long hearing of the Senate Judiciary Committee, Mr. Gonzales repeated the administration's legal defense of the spying by the National Security Agency but provided few answers to the basic questions about the program. He said the surveillance "is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of al Qaeda or an affiliated terrorist organization." But when asked if he could state that no one in the United States was monitored who did not communicate with a suspected terrorist abroad, he answered, "I can't give you absolutely assurance of the kind you've asked for."

Mr. Gonzales also didn't say how many Americans had been monitored, how widely the information collected had been shared within the government or whether permanent records had been kept. He said there were rules for handling the intelligence, but could not say whether they had been reviewed either by Congress or a court. Mr. Gonzales said the NSA personnel ordering wiretaps followed the same standard the administration uses when seeking court authorization for surveillance under the Foreign Intelligence Surveillance Act. He also said counterterrorism operatives have used FISA to eavesdrop on purely domestic conversations. So why are FISA procedures adequate for monitoring al Qaeda communications inside the United States but too "cumbersome and burdensome" for calls between the United States and foreign countries? Mr. Gonzales didn't offer an explanation.

Fortunately, a bipartisan group of senators expressed the view that the warrantless surveillance is either legally or politically untenable as currently practiced. While agreeing that intelligence agencies should have the authority to monitor suspected al Qaeda communications both in and outside the United States, Chairman Arlen Specter (R-Pa.) and Sens. Mike DeWine (R-Ohio), Sam Brownback (R-Kan.) and Lindsey O. Graham (R-S.C.), among others, pressed Mr. Gonzales to consider reforms. Mr. Specter suggested that President Bush submit the entire NSA program to FISA's secret court for review; Mr. DeWine and Mr. Brownback urged the administration to work with Congress on a revision to the FISA statute that would allow spying to be conducted under that law, with the checks and balances it provides.

Mr. Gonzales responded that "we are happy to listen to your ideas." He reiterated the administration's concerns that legislation might result in the leak of critical information about the surveillance, or in "attempted restrictions upon the president's inherent constitutional authority." But he added that "most concerns can be addressed in one way or the other, and . . . obviously, we'd listen and consider your ideas." If those words meant that Mr. Bush is opening the door to a compromise with Congress that would bring NSA spying under FISA or some other legal authority providing for judicial review and congressional monitoring, then that is to be welcomed.


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