Gonzales Defends Spying as ‘Limited and Lawful’

Facing often testy interrogation by lawmakers from both parties, Atty. Gen. Alberto R. Gonzales on Monday staunchly defended the National Security Agency’s warrantless spying program as a legally justified “early warning system” designed to protect America in a technological age.

Gonzales repeatedly was asked by Republicans and Democrats on the Senate Judiciary Committee why President Bush had authorized the spying without asking for changes to existing wiretapping laws -- which outlaw the use of the National Security Agency’s powerful intelligence surveillance capabilities on U.S. soil without court approval.

Gonzales responded that the program, approved by Bush after the Sept. 11 terrorist attacks, was “limited and lawful.”

Pressed again and again on the issue during eight hours of testimony, Gonzales showed little emotion and no irritation as he parried the skepticism expressed by senators.

The hearing’s tone was set at the start as Democrats disputed the decision by Judiciary Committee Chairman Arlen Specter (R-Pa.) not to require Gonzales to testify under oath.

Gonzales expressed a willingness to take the oath, but Specter said it was not necessary, noting that administration officials usually were not sworn in before testifying to Senate committees.

Since the spying program’s existence was revealed late last year, Bush has frequently defended its legality. But Gonzales is the highest-ranking administration official to publicly discuss it before Congress.

The contentious questioning directed at Gonzales underscored the administration’s failure to make much headway in persuading many lawmakers -- including Republicans -- to accept its legal rationale for the spying. But whether that would spur steps to cause the administration to change the program’s operations -- or reveal more details about it -- remained unclear.

Gonzales defended the National Security Agency’s monitoring of international communications by suspected terrorists as “the modern equivalent to a scout team sent ahead to do reconnaissance.... As with all wartime operations, speed, agility and secrecy are essential to its success.”

But four of the 10 Republicans on the Judiciary Committee joined Democrats in saying they were concerned about the legal underpinnings of the president’s order.

“It’s in the country’s best interest, the president’s best interest” for the White House to discuss the spying program with Congress, “then to see whatever changes in the law have to be made” to implement it, Sen. Mike DeWine (R-Ohio) said.

Gonzales said the president did not need to ask for changes in the 1978 Foreign Intelligence Surveillance Act because his wartime authorities as commander in chief gave him the right to approve the spying without warrants.

“Presidents throughout our history have authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush,” Gonzales said.

Sen. Sam Brownback (R-Kan.) questioned whether claiming such expansive wartime powers made sense for a possibly endless campaign against terrorism.

“It strikes me that we’re going to be in this war on terrorism possibly for decades; maybe not, but this could be the Cold War of our generation,” Brownback said. “To have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public’s support for this.”

At times, Democrats could barely contain their anger. Sen. Russell D. Feingold (D-Wis.) accused the administration of acting illegally and unconstitutionally.

“What the administration has said is that when it comes to national security, the problem is that the Democrats have a pre9/11 view of the world,” Feingold said. “Well, let me tell you what I think the problem is.... The real problem is that the president seems to have a pre-1776 view of the world. That’s the problem here.”

The National Security Agency is the largest of the United States’ 15 intelligence services and is charged with intercepting communications around the globe. Following revelations of government spying on political opponents, journalists and celebrities in the 1960s and 1970s, Congress passed the Foreign Intelligence Surveillance Act, or FISA, which established special courts to provide some judicial oversight of government surveillance inside the United States.

The administration has argued that Congress’ resolution authorizing the use of force against Al Qaeda, passed after the Sept. 11 attacks, made the Foreign Intelligence Surveillance Act’s provisions moot.

But Sen. Lindsey Graham (R-S.C.) and other senators said they had no intention of signing off on domestic surveillance when the resolution was passed, and that if such an interpretation held, Congress would be more restrictive in authorizing military action in the future.

“I’ll be the first to say, 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,” Graham said. “I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far.”

Referring to the internment of Japanese Americans during World War II, Graham said, “When the nation’s at war, I would argue ... you need checks and balances more than ever, because within the law we put a whole group of people in jail who just looked like the enemy.”

But Sen. John Cornyn (R-Texas) supported the White House’s view of its power to approve surveillance activities, saying it was wrong to focus on the Foreign Intelligence Surveillance Act when gauging the program’s legality.

“The very premise of the question suggests that the president can only exercise the authority that Congress confers,” Cornyn said. “And when people talk about the law, the law that pertains to this particular question ... includes the Constitution and the authorization for use of military force.”

Several Democrats argued that if the use-of-force resolution could be read to authorize warrantless electronic surveillance, it could open the way to warrantless physical searches of homes, people or property.

“If the president has that authority, does he also have the authority to wiretap Americans’ domestic calls and e-mails under this authority if he feels it involves Al Qaeda activity?” asked Sen. Patrick J. Leahy (D-Vt.).

“I’ve said that that presents a different legal question, a possibly tough constitutional question,” Gonzales replied. “And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.”

Leahy pressed him: “Are you doing that?”

“I can’t give you assurances,” Gonzales said. “That is not what the president has authorized for this program.”

Leahy noted that the Foreign Intelligence Surveillance Act had been amended repeatedly since 2001 at the administration’s request.

“We have given you five amendments under FISA because you requested them. But you never came to us with this,” Leahy said. “At least we have a press that tells us what you are doing, because you are not telling us.”

In response, Gonzales gave a half-smile.

The program’s existence was revealed in December by the New York Times.

Sen. Dianne Feinstein (D-Calif.) said the administration’s reluctance to fully brief Congress’ intelligence committees on the program suggested that officials had something to hide.

“I can only believe -- and this is my honest view -- that this program is much bigger and much broader than you want anyone to know,” she said.

As the hearing drew to a close, Specter said he remained unpersuaded by Gonzales’ arguments, and he urged the administration to seek advice from Foreign Intelligence Surveillance Act judges about what legislation would be needed to authorize the program.

He also urged members of congressional intelligence panels to review details of the program.

“The Al Qaeda threat is very weighty, but so is the equilibrium of our constitutional system,” Specter said.