Washington – Attorney General Alberto Gonzales told skeptical senators today that the Bush administration finds it too “cumbersome and burdensome” to obtain warrants before eavesdropping on domestic communications to and from other countries if terrorist ties are suspected.
“We can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al-Qaeda operatives,” Gonzales told members of the Senate Judiciary Committee in the first day of hearings on the National Security Agency wiretapping program.
When Gonzales was asked why the administration didn’t ask Congress to adjust the law to make it less burdensome, the attorney general replied: “The short answer is that we didn’t think we needed to, quite frankly.”
Gonzales said that Bush’s authority as commander-in-chief, and the September 2001 congressional resolution authorizing military force against al-Qaeda, gave the executive branch the power to intercept certain phone calls, e-mail and other forms of communication between the U.S. and other countries when al-Qaeda ties are suspected without obtaining warrants.
Both Democrats and Republicans expressed alarm at the scope of the power Bush claimed.
Sen. Lindsey Graham, R-S.C., said the administration’s reasoning was “very dangerous” and that its claim of authority “seems to have no boundaries.”
“The president of the United States has the fundamental responsibility to protect the country, but … as the Supreme Court has said, … the president does not have a blank check,” said committee Chairman Arlen Specter, R-Penn.
Federal law gives the NSA the authority to conduct warrantless spying overseas. But under the Foreign Intelligence Surveillance Act, federal agents who eavesdrop on espionage and terrorism suspects inside the U.S. must apply for a secret court order within 72 hours after starting such surveillance.
After the Sept. 11 attacks, said Gonzales, Bush concluded the 72-hour grace period was too restrictive, and that the U.S. needed a “nimble early warning system” in the war on terror.
Bush’s lawyers decided that the resolution passed by Congress that fall, authorizing the use of “all necessary and appropriate force,” gave Bush the power to order warrantless eavesdropping, Gonzales said.
“We all agree that it’s a necessary and appropriate use of force to fire bullets and missiles at al-Qaeda strongholds,” said Gonzales. “Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept al-Qaeda phone calls?”
When the Supreme Court ruled in 2004 that the government could detain U.S. citizens as prisoners of war, it bolstered the president’s authority, Gonzales argued.
“If the detention of an American citizen who fought with al-Qaeda is authorized … as an incident of waging war, how can it be that merely listening to al-Qaeda phone calls into and out of the country in order to disrupt their plots is not?” Gonzales said.
The NSA program is monitored by agency attorneys and an inspector general and reauthorized by the White House every 45 days, Gonzales said. Eight congressional leaders have been briefed on the programs since its inception in the fall of 2001.
Surveillance is triggered, Gonzales said, “only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of al-Qaeda or an affiliated terrorist organization.”
Most Republican senators spoke out in favor of Bush’s policy. Sen. Jon Kyl, R-Ariz., went even further, saying that the NSA should start eavesdropping, without warrants, on all communications within the U.S. by residents with alleged terrorist ties.
“There is no less reason to do it (in domestic phone calls and e-mails) than to intercept international communications,” Kyl said.
But other senators, of both parties, criticized the way the White House launched and ran the program.
“The concern is that there is a broad sweep which includes people who have no connection to al-Qaeda,” said Specter.
Instead of cooperating with Congress and the courts and changing the law, said Sen. Mike DeWine, R-Ohio, the president has risked “a very divisive, hurtful” controversy.
“What is not debatable is that both from a constitutional and well as from a policy point of view … This country would be stronger and the president would be stronger…if he did come to the Congress for specific statutory authorization,” said DeWine.
“We should have the tools to protect America’s security. That’s why I coauthored the Patriot Act five years ago and why it passed with such broad bipartisan support,” said Sen. Patrick Leahy, D-Vermont. “We amended FISA…five times since 9-11, to give it more flexibility.
“Of the approximately 20,000 foreign intelligence warrant applications…over the past 28 years,” said Leahy, only “about half a dozen have been turned down.”
But “instead of doing what the president has the authority to do legally, he decided to do it illegally,” Leahy said.
