Limiting NSA Spying Is Inconsistent With Rationale, Critics Say

By Dan Eggen
Washington Post Staff Writer
Wednesday, February 8, 2006

Ever since media reports revealed the existence of a warrantless government eavesdropping program targeting U.S. citizens and residents, Bush administration officials have taken great pains to emphasize that the effort involves only international telephone calls and e-mails.

The question from both Democratic and Republican members of the Senate Judiciary Committee at a hearing Monday was: Why stop there? Why not intercept domestic calls, as well?

"I don't understand why you would limit your eavesdropping only to foreign conversations," Sen. Joseph R. Biden Jr. (D-Del.) told Attorney General Alberto R. Gonzales.

The committee's debate highlighted one of the most significant apparent contradictions in the administration's defense of the spying program, under which the National Security Agency intercepts some calls to and from the United States and contacts overseas.

Many national security law experts said yesterday that the distinction makes little sense legally, because the administration concluded that President Bush has the constitutional authority to order wiretaps on U.S. citizens and residents without court approval.

Once that threshold is crossed, numerous experts said yesterday, there is little reason to limit the kind of calls that can be intercepted. It is irrelevant where the other contact is located, they said.

"The rationale for this surveillance has nothing to do with anything tied to a border," said Geoffrey R. Stone, a University of Chicago law professor critical of the administration's legal justifications for the NSA program.

"There's no pragmatic reason and no principled reason why, if it is okay for NSA to listen in on phone calls between someone in Detroit and Pakistan without a warrant, they also can't listen in on a phone call between Detroit and New York," Stone said.

Bruce Fein, a deputy attorney general in the Reagan administration who is among a number of prominent Republican critics of the NSA program, said the argument underscores what he views as a lack of consistency in the administration's legal arguments.

"If it's good enough for international calls, then it should be good enough for domestic calls, too," Fein said.

Gonzales told senators that Bush had considered including purely domestic communications in the spying program. The idea was rejected in part because of fear of public outcry. He also said the Justice Department had not fully analyzed the legal issues of such a move.

Bush and his aides have argued that it is both legal and necessary because the process for obtaining warrants under the Foreign Intelligence Surveillance Act (FISA) is too onerous to keep up with fast-moving al Qaeda suspects. Under the 1978 FISA statute, judges secretly review applications from Justice Department lawyers to surveil terrorism suspects and spies in the United States.

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