U.S. Attorney General Alberto Gonzales’ appearance in defense of the Bush administration’s domestic eavesdropping program didn’t lower our suspicions that the effort is ill-considered and probably illegal.
Senate Judiciary Committee members expressed skepticism from both sides of the aisle. Gonzales was the only witness yesterday for the committee’s first hearing on the National Security Agency’s warrantless surveillance of telephone and Internet communications between people overseas and persons in the United States. Gonzales’ claim that the Constitution and the congressional resolution passed after the Sept. 11 attacks give the president authority for warrantless wiretaps didn’t play well with either Democrats or Republicans on the panel.
Judiciary chairman Arlen Specter, R-Pa., noted federal law prohibits “any electronic surveillance without a court order.” He said while “the president of the United States has the fundamental responsibility to protect the country … the president does not have a blank check.”
Gonzales repeated the contention of President Bush that domestic eavesdropping by the NSA was needed to keep al-Qaeda from another attack in the United States. The 1978 Foreign Intelligence Surveillance Act, passed as a result of earlier abuses, requires a warrant from the secret FISA court. But the NSA doesn’t have to follow that procedure under the president’s executive order, and Gonzales argued that “the review process can, of necessity, take precious time.”
The FISA law allows applying for a warrant up to 72 hours after the fact, so there’s no need to worry about delays so long as the surveillance is justified.
Sen. Lindsey Graham, R-S.C., criticized Gonzales’ reasoning, adding that when he voted for the 2001 resolution he “never envisioned I was giving this or any other president the ability to go around” the law.
FISA gives the president authority to monitor al-Qaeda legally, noted the committee’s ranking Democrat, Sen. Patrick Leahy of Vermont, “but instead … he’s decided to do it illegally, without safeguards.” The eavesdropping program came to light only because of NSA whistleblowers who were concerned about its legality. Not much is known about its workings.
Specter said if the White House is unsure about the 1978 act, it should bring a reform proposal to Congress. We agree.
The administration insists the post-Sept. 11 resolution “to use all necessary and appropriate force against al-Qaeda” gave it carte blanche to conduct warrantless domestic surveillance. It’s clear Congress intended no such thing.
