Panel challenges wiretap defense


WASHINGTON -- Attorney General Alberto R. Gonzales drew bipartisan skepticism from members of the Senate Judiciary Committee yesterday as he defended the legality of the National Security Agency's warrantless eavesdropping program.

As expected, the 8 1/2 -hour hearing on the Bush administration initiative grew contentious at times, with senators from both parties questioning the legality of the NSA operation.

Committee Chairman Arlen Specter, a Pennsylvania Republican, said President Bush "does not have a blank check" when it comes to fighting terrorism.

And some Democrats accused Bush and Gonzales of lying and committing a "federal crime."

Sen. Patrick J. Leahy of Vermont, the panel's ranking Democrat, said, "In our America, nobody is above the law, not even the president." He contended that Bush's "secret wiretapping program is not authorized by" a 1978 law requiring the NSA to obtain warrants for wiretaps in the United States and, therefore, is illegal.

Wiretapping not authorized by that law "is a federal crime," Leahy said. "That is what the law says, so it's what the law means."

Critics, which include the nonpartisan Congressional Research Service, have argued that the program flouts the 1978 law, the Foreign Intelligence Surveillance Act, which established a secret court to approve warrants to collect intelligence domestically. The act stated that it would be the "exclusive means" for domestic searches unless Congress passed a law to the contrary.

Gonzales likened the NSA program to a "scout team" doing battlefield reconnaissance. Without it, he said, the United States would be shooting blindly at its enemies.

"It is not simply coincidence that the United States of America has not been hit since 9/11," he said, crediting American soldiers, the USA Patriot Act and the NSA program.

Some Republicans were critical of the administration's legal arguments, which Gonzales repeated at length.

Sen. Lindsey Graham of South Carolina said the administration's approach is "very dangerous" and could make it "harder for the next president" to obtain approval from Congress to go after an enemy that has attacked the United States.

Graham said the administration's claim that the Constitution gives Bush the authority to act outside congressional authorization when national security is at stake "could basically neuter the Congress and weaken the courts."

Gonzales, who was the top legal adviser at the White House when Bush authorized the NSA program, resisted suggestions from senators that the law governing NSA surveillance be rewritten to eliminate questions about the legality of the agency's digital-age activities. Gonzales said that the NSA operation is already "totally consistent" with the law.

He responded wearily to suggestions about whether the administration should seek outside review of the program. The surveillance operation, which became public in December, allows the NSA to track communications in the United States if one person involved is outside the country and at least one is suspected to be linked to al-Qaida.

Gonzales said provisions in the 1978 law, designed to expedite eavesdropping by granting warrants up to 72 hours later, require too much paperwork.

"All of these steps take time. Al-Qaida, however, does not wait," he said. "We can't afford to impose layers of lawyers on top of career intelligence officers."

Several Republican senators asked Gonzales whether the administration would support a new law that would explicitly authorize a program like the one it says the NSA is conducting.

Gonzales said that might limit the president's ability to fight terrorists. He added that the legislative process would also run the risk of revealing details that would harm national security.

But, Gonzales said, "we'll listen to your ideas."

Specter took a different tack, asking Gonzales whether the administration would allow the secret court created by the 1978 law to review the NSA program to assess its legality to boost "public confidence" in the program. Gonzales was noncommittal.

"We are continually looking at ways that we can work with the FISA court," he said.

He also sidestepped Specter's questions about whether information obtained in the warrantless searches was complicating investigators' efforts to get warrants later, because the information obtained through the program might be viewed by the court as suspect.

Republican Sen. Sam Brownback of Kansas urged Gonzales to consider a more sustainable approach to the NSA program that would involve Congress in authoring and overseeing it regularly "so we can sustain support for the war on terrorism."

Defending the program, Republican Sen. John Cornyn of Texas said it "supplements" the 1978 law and "responds to the need for speed to make sure we capture those communications in time to not only detect but then deter future terrorist attacks."

Democrats repeatedly pointed to what they saw as inconsistencies in statements by Bush and Gonzales, and they questioned whether Gonzales had told the truth about warrantless wiretapping last year.

At his confirmation hearing in January 2005, Gonzales was asked whether the president, as commander in chief, could authorize domestic surveillance "in violation of the criminal and foreign intelligence surveillance statutes of this country." He responded by saying that "it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."

Yesterday, Gonzales explained that the NSA program authorized by Bush is legal and "totally consistent, not in violation" of the 1978 law.

"I've heard all your arguments, but I want to get back to your testimony, which, frankly, Mr. Attorney General, anybody that reads it basically realizes you were misleading this committee," said Democratic Sen. Russell D. Feingold of Wisconsin. "Of course, if you had told the truth, maybe that would have jeopardized your nomination."

Gonzales shot back: "Senator, I told the truth then. I'm telling the truth now."

In a slap at the attorney general's credibility, the hearing began with a dispute over whether Gonzales would testify under oath. The Republican majority prevailed, and Gonzales testified without being sworn in.

The hearing was the first of at least three the Judiciary Committee plans to hold on the NSA's program. Specter said he has invited former Attorney General John Ashcroft to testify. The Senate Select Committee on Intelligence plans to hold a closed hearing Thursday.

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