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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.

At the same time, Gonzales and other officials have said that the FISA process has worked well for cases not covered by the NSA program, though the process differs little, if at all.

"While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against al Qaeda," Gonzales testified.

Many critics of the NSA program view the administration's comments on FISA as confusing, and question why the statute is "cumbersome and burdensome," in Gonzales's words, only for cases involving international calls. Sen. Herb Kohl (D-Wis.) called the arguments "incomprehensible."

Several GOP senators, including Charles E. Grassley (Iowa) and Jeff Sessions (Ala.), lauded the administration for limiting the program to international calls. "We are not going hog-wild restraining American liberties," Sessions said.

Some supporters of the NSA effort advocate a broader approach. Sen. Jon Kyl (R-Ariz.) urged the administration to consider expanding the program to allow eavesdropping without warrants for communications inside the United States.

"There is no less reason to do it than there is to intercept international communications with respect to a potential terrorist warning or attack," he said.

Michael J. Woods, a former chief of the FBI's National Security Law unit, said one key legal question is whether the NSA is intercepting calls from telecommunications junctions in the United States or overseas. That distinction could be important in determining how far the NSA might go in intercepting purely domestic calls, Woods said.

Gonzales and other officials have declined to discuss such operational details. But former senator Bob Graham (D-Fla.) told The Washington Post that briefers told him in October 2002 that Bush had authorized the NSA to intercept "conversations that . . . went through a transit facility inside the United States."

Vice President Cheney took a jab yesterday at Republican senators who have questioned the NSA program, asserting on PBS's "NewsHour" that the eight congressional leaders who were briefed on the program agreed with it. "That's the reaction that's important, not the one that comes after it becomes a political issue and people are trying to score political points," he said.

Democrats noted that two of their leaders did raise objections about the program before it was disclosed in December, and said that the briefings have not been extensive enough to be meaningful.

Staff writer Peter Baker contributed to this report.

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