By Charles Babington and Dan Eggen
Washington Post Staff Writers
Wednesday, March 1, 2006
Attorney General Alberto R. Gonzales appeared to suggest yesterday that the Bush administration's warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December.
In a letter yesterday to senators in which he asked to clarify his Feb. 6 testimony to the Senate Judiciary Committee, Gonzales also seemed to imply that the administration's original legal justification for the program was not as clear-cut as he indicated three weeks ago.
At that appearance, Gonzales confined his comments to the National Security Agency's warrantless wiretapping program, saying that President Bush had authorized it "and that is all that he has authorized."
But in yesterday's letter, Gonzales, citing that quote, wrote: "I did not and could not address . . . any other classified intelligence activities." Using the administration's term for the recently disclosed operation, he continued, "I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject" of the Feb. 6 hearing.
At least one constitutional scholar who testified before the committee yesterday said in an interview that Gonzales appeared to be hinting that the operation disclosed by the New York Times in mid-December is not the full extent of eavesdropping on U.S. residents conducted without court warrants.
"It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about," said Bruce Fein, a government lawyer in the Nixon, Carter and Reagan administrations.
A Justice Department official who spoke only on the condition of anonymity because of the sensitive nature of the program, said, however, that Gonzales's letter "should not be taken or construed to be talking about anything other than" the NSA program "as described by the president."
In his letter, Gonzales revisited earlier testimony, during which he said the administration immediately viewed a congressional vote in September 2001 to authorize the use of military force against al-Qaeda as justification for the NSA surveillance program. Bush secretly began the program in October 2001, Gonzales's letter said.
On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."
But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."
Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."
One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification.
Ranking Judiciary Committee Democrat Patrick J. Leahy (Vt.) said Gonzales's letter falls "far short of helping us focus this picture. Instead, they blur it further with vague responses about their shifting legal analysis for this illegal domestic spying and with unclear clarifications on the scope of the program over the last four years."
Also yesterday, the Senate voted 69 to 30 to end a filibuster of the proposed four-year extension of the USA Patriot Act, the sweeping anti-terrorism law enacted in 2001. The Senate plans today to approve the measure, which contains hotly debated modifications.
In a morning Judiciary Committee hearing, hours before Gonzales's letter was released, Fein was one of several constitutional experts who sharply challenged the constitutionality of the NSA program. Other scholars and former CIA director R. James Woolsey strongly defended it.
Bush has acknowledged that he authorized the NSA to monitor phone calls and e-mails involving one party in the United States and one abroad, provided that federal agents suspect one party of terrorist ties. The administration contends that the program is not covered by the 1978 Foreign Intelligence Surveillance Act, which established a secret court to consider government requests to wiretap U.S. citizens and residents in terrorism and espionage cases.
Numerous lawmakers, including Judiciary Committee Chairman Arlen Specter (R-Pa.), disagree. Specter says the NSA program violates the FISA law, and he is proposing legislation that would allow the FISA court to rule on the program's constitutionality and to oversee aspects of the surveillance operations.
Woolsey, President Bill Clinton's first CIA director, defended the eavesdropping program.
"The one-spy-at-a-time surveillance systems of the Cold War -- including FISA, through courts -- are not designed to deal with fast-moving battlefield electronic mapping" of today's terrorism fight, he said. "An al-Qaeda or a Hezbollah computer might be captured which contains a large number of e-mail addresses and phone numbers which would have to be checked out very promptly," he said, and the FISA warrant process is too cumbersome to allow it.