By Walter Pincus
Washington Post Staff Writer
Monday, February 13, 2006
Two key Democrats yesterday called the NSA domestic surveillance program necessary for fighting terrorism but questioned whether President Bush had the legal authority to order it done without getting congressional approval.
Rep. Jane Harman (Calif.), ranking Democrat on the House Permanent Select Committee on Intelligence, and former Senate majority leader Thomas A. Daschle (S.D.) said Republicans are trying to create a political issue over Democrats' concern on the constitutional questions raised by the spying program.
At the same time, the Republican chairmen of the Senate and House intelligence committees -- Sen. Pat Roberts (Kan.) and Rep. Peter Hoekstra (Mich.), who attended secret National Security Agency briefings -- said they supported Bush's right to undertake the program without new congressional authorization. They added that Democrats briefed on the program, who included Harman and Daschle, could have taken steps if they believed the program was illegal. All four appeared on NBC's "Meet the Press."
Roberts said he could not remember Democrats raising questions about the program during briefings that, beginning in 2002, were given to the "Gang of Eight." That group was made up of the House speaker and minority leader, the majority and minority leaders of the Senate, and the chairmen and ranking Democrats of the House and Senate intelligence committees.
At the briefings, Roberts said, "Those that did the briefing would say, 'Do you have questions? Do you have concerns?' " Hoekstra said if Democrats thought Bush was violating the law, "it was their responsibility to use every tool possible to get the president to stop it."
Harman countered that John D. Rockefeller IV (D-W.Va.), vice chairman of the Senate intelligence panel, had voiced his concerns to Vice President Cheney in a classified letter in July 2003, but "if he had shared that letter publicly, I think he would have been in violation of the Espionage Act, the disclosure of classified information."
Harman said the briefings she received concerned "the operational details of the program," which she supported. "However," she added, "the briefings were not about the legal underpinnings of the program."
She said it was not until Bush publicly spoke about the program, after it was revealed in the New York Times in December, that she was free to discuss it with House staff and constitutional lawyers.
Daschle said he wants the program to continue but maintained that the warrantless wiretapping of calls that came into the United States or calls made overseas, even those involving suspected terrorist sources, violate the Foreign Intelligence Surveillance Act (FISA).
He recalled that after the Sept. 11, 2001, attacks Bush asked Congress to revise FISA -- to initiate wiretaps and get warrants after 72 hours -- to make it easier to use against terrorists. Those changes were made. But in the authorization to fight al Qaeda, Bush was denied language that would have covered activities on U.S. soil.
Harman noted that the House and Senate intelligence committees were briefed last week on domestic wiretapping. "We're only 36 members total that we're talking about, and those members should decide whether this program fits within the law, and if it does, which I think it does, we should all declare victory. If it does not, then we should be changing the law or changing the program."
The three current intelligence committee members talked about the article in Foreign Affairs by Paul R. Pillar, the former senior CIA intelligence analyst on Iraq. He criticized the Bush administration for "cherry-picking" intelligence to justify a decision it had already reached to go to war, while ignoring assessments that problems would emerge after Saddam Hussein was removed.
Roberts said Pillar did not give his committee that kind of assessment. Hoekstra questioned why Pillar was speaking out now.
Harman said: "He was trying to get everyone's attention. Intelligence was ignored. Yes, everyone agreed there was WMD in Iraq, but the weight of the [intelligence community's] recommendation was Saddam was contained and he wasn't going to use it. And that's the part that the administration never let us hear about."