Gonzales Defends Surveillance

By Dan Eggen
Washington Post Staff Writer
Tuesday, Februsry 7, 2006; Page A01

Attorney General Alberto R. Gonzales spent more than seven hours yesterday sparring with skeptical lawmakers over a controversial domestic eavesdropping program, defending its legality while refusing to answer dozens of questions about its operations or whether President Bush has authorized other types of warrantless searches or surveillance in the United States.

Gonzales also suggested in testimony before the Senate Judiciary Committee that the administration had considered a broader effort that would include purely domestic telephone calls and e-mail but abandoned the idea in part due to fears of the negative public reaction.

"Think about the reaction, the public reaction that has arisen in some quarters about this program," Gonzales told Sen. Herb Kohl (D-Wis.). "If the president had authorized domestic surveillance as well, even though we're talking about al Qaeda-to-al Qaeda, I think the reaction would have been twice as great. And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans."

He emphasized in other comments, however, that the legality of such an approach had not been fully evaluated and that the FBI and other agencies are using all available tools against al Qaeda suspects inside the country. Under the program, secretly ordered by Bush after the Sept. 11, 2001, attacks and revealed in news accounts in December, the National Security Agency intercepts some international calls and e-mail messages between U.S. residents and contacts overseas. But it does not monitor domestic calls, Gonzales and others have said.

The marathon day of testimony represented the administration's most full-throated response to criticism of the program on Capitol Hill. At least two more hearings will be held by the Judiciary panel, and the Senate intelligence committee will meet behind closed doors this week to hear from Gonzales and a former NSA director, Air Force Gen. Michael V. Hayden.

In often tense and sometimes angry exchanges with both Democratic and Republican critics, Gonzales generally avoided answering specific questions about the program's scope, effectiveness or potential consequences. He focused instead on a series of legal arguments that the administration has put forth in recent weeks.

The Justice Department argues in a 42-page legal analysis that Bush has the inherent power to mount warrantless surveillance in a time of war, even if that includes spying on U.S. citizens or residents, and that Congress reinforced his power by passing a resolution authorizing the use of force against al Qaeda after the terrorist attacks. Although the administration has attracted support from some conservative scholars and many GOP lawmakers, legal and national security experts from both parties have argued that Bush overstepped his authority and may have broken the federal law that governs clandestine surveillance in the United States.

Gonzales said yesterday that he could not guarantee that the spying program had not swept up innocent people, but he said that he is unaware of abuses and that safeguards are in place at the NSA to minimize problems. He declined to provide many details, including the number of NSA wiretaps initiated over the past four years and what happens to information collected in cases that do not end up being connected to terrorism.

Gonzales faced sharp questioning from all the Democrats and some Republicans on the panel. Its chairman, Sen. Arlen Specter (R-Pa.), questioned the legal justification for the program and urged a thorough, closed-door investigation by the House and Senate intelligence committees.

In one of the tensest exchanges, Sen. Russell Feingold (D-Wis.), a longtime critic of the administration's counterterrorism policies, angrily accused Gonzales and Bush of misleading Congress by implying that the government was not engaged in wiretapping or other surveillance without a court's approval.

Gonzales replied that he had been "totally consistent" in his statements.

At another point, Sen Patrick J. Leahy (Vt.), the panel's ranking Democrat, said sarcastically after a series of questions went unanswered: "Of course, I'm sorry, Mr. Attorney General, I forgot: You can't answer any questions that might be relevant to this."

Leahy also condemned Gonzales's disclosure that the administration had consulted with the leadership of the intelligence committees in 2004 over possible legislation to cover the NSA program.

"You mean you've been doing this wiretapping for three years and then suddenly you come up here and say, 'Oh, by the way, guys, could we have a little bit of authorization for this?' Is that what you're saying?" Leahy said. He added later: "Does this sound like a CYA on your part? It does to me."

Specter argued that Congress had been improperly cut out of the process. Several Republicans also joined Democrats in suggesting that Congress and the administration should consider legislation covering the program. Some lawmakers proposed asking the secret court that issues warrants in terrorism cases to review the legality of the spying program.

Sen. Lindsey O. Graham (R-S.C.), a central player in the recent debate over U.S. treatment of military detainees, called the administration's legal argument "very dangerous in terms of its application for the future."

"When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

But Gonzales cautioned against amending FISA -- the 1978 Foreign Intelligence Surveillance Act, which he characterized as a "peacetime" statute. He said pursuit of legislation also would risk exposing the program's secrets.

Gonzales chose his words carefully, frequently limiting his answers to "this program" or to "the program the president has confirmed." At one point he said senior Justice Department officials, whose concerns about the program contributed to a temporary halt in surveillance in 2004, did not raise objections to the program he was discussing.

A department official said after the testimony that Gonzales was not implying that any other program existed.

Gonzales offered clarifications or new explanations for some aspects of the monitoring program. He told the panel that the NSA is relying on "probable cause" when picking targets but said a different term -- "reasonable basis" -- was used because the NSA employees are not lawyers.

Before granting a warrant, a FISA judge must find probable cause to believe that the American targeted for surveillance -- not the overseas party -- is an agent of a foreign power or terrorist organization. Bush's program has no such requirement. After eavesdropping on thousands of Americans in the past four years, The Washington Post reported Sunday, intelligence officers have "washed out" nearly all of them as suspects.

Staff writers Barton Gellman and Dafna Linzer and researcher Julie Tate contributed to this report.

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