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Gonzales contends that the president has the inherent authority to order surveillance of al Qaida contacts within the United States.
By Tom Curry National affairs writer
msnbc.com
updated 2/6/2006 9:32:51 AM ET 2006-02-06T14:32:51

WASHINGTON -- Attorney General Alberto Gonzales, testifying before the Senate Judiciary Committee Monday, defended President Bush’s decision to use the National Security Agency to conduct surveillance of international phone calls of suspected al Qaida members or associates when one party to the conversation is located outside the United States.

The surveillance program has sparked debate, with Bush administration critics such as Sen. Russ Feingold, D-Wisc., accusing the administration of violating federal law by conducting searches without a warrant.

Here’s a guide to the NSA debate.

What is the NSA doing in its surveillance program?
According to Gonzales, the program “is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaida or a terrorist organization affiliated with al Qaida.”

Is this NSA spying legal?
Neither the Supreme Court nor any lower federal court has yet ruled on the legality of this program. Administration lawyers insist it is legal, but its opponents insist it isn’t.

What law usually applies to spying on foreign agents or terrorists inside the United States?
The 1978 Foreign Intelligence Surveillance Act (FISA) is the law that regulates electronic surveillance.

The FISA law set up a special court, the FISA court, which reviews applications for search warrants for eavesdropping on foreign agents and terrorists.

What are the arguments for the legality of the NSA operation?
The Bush administration has made two basic arguments.

One is that the Sept. 14, 2001 use of force resolution which Congress passed to authorize Bush to fight al Qaida included, by implication, the power to eavesdrop on al Qaida contacts inside the United States.

The FISA law says that the government cannot engage in electronic surveillance "except as authorized by statute." And according to Gonzales, “in this case, that other statute is the Force Resolution.”

Secondly, the administration argues that any president has inherent power under the Constitution to wage war, spy on our foreign enemies, and protect the country from attack.

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Bush argued in his State of the Union address that the NSA program is needed because “If there are people inside our country who are talking with al Qaida, we want to know about it, because we will not sit back and wait to be hit again.”

What are the arguments that critics of the NSA program are making against it?
Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., has questioned whether Congress, when it passed the use of force resolution in 2001, really meant to allow Bush to order NSA surveillance outside of the confines of the FISA law.

Why, he asks, didn’t the Bush administration specifically ask Congress in that use of force resolution for permission to do NSA surveillance? Also, he asks, why didn’t Bush ask Congress for the authority to do NSA surveillance when Congress was debating the Patriot Act in 2001?

So why didn’t Bush go to Congress and ask FISA to be amended so as to allow the NSA program?
Gonzales said on Dec. 19, “We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

Does the Fourth Amendment to the Constitution apply to this kind of spying?
The Fourth Amendment protects people “against unreasonable searches and seizures.”

It also says, “No Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Gonzales has argued that the Fourth Amendment “has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant.”

Why did the administration not use the existing FISA process?
Gonzales has argued that the FISA process takes too long. Surveillance decisions must be left “to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system.”

But the administration's critics, such as a group of law school professors including former Solicitor General Walter Dellinger, say that FISA is absolutely clear that it alone is "the exclusive means" by which the president and the NSA may conduct electronic surveillance.

They point out that FISA allows surveillance of a specific person to begin immediately as long as the government obtains judicial approval within 72 hours. And whatever its burdens are, they say, there is simply no way for a president to avoid the dictates of FISA.

Does this NSA program make the FISA court redundant?
Specter has suggested that the administration erred by cutting the FISA judges out of any role in the NSA program. “What would satisfy a lot of people would be if there were a check and balance on what the executive (branch) is doing,” Specter said. “The FISA court is trained in this, they know this field. Also they don’t leak. They’re the only unit in town which is relevant and which doesn’t leak.”

If you make a phone call from Omaha to Boston, will you be subject to surveillance under this NSA program?
No, not according to Gen. Michael Hayden, the Principal Deputy Director for National Intelligence and other Bush administration officials.

Says Hayden: “This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaida.”

Is it accurate to call the NSA program “domestic spying”?
The Bush administration and its allies answer that question with this question, “Is a flight from Paris to New York a domestic flight?”

The debate on the terminology is driven by the politics: foes of the NSA program use the phrase “domestic spying,” while President Bush and administration officials use the phrase, “a terrorist surveillance program.”

How did the program become public knowledge?
The New York Times published a story on it on Dec. 16. After that, the president and other officials began discussing it publicly.

Has its public disclosure of the NSA program harmed U.S. efforts to keep track of al Qaida?
CIA Director Porter Goss told the Senate Intelligence Committee Thursday, “The damage has been very severe to our capabilities to carry out our mission.”

Who in Congress was informed of the existence of the program prior to it being made public by the New York Times on Dec. 16?
Sen. Pat Roberts, R-Kan., the chairman of the Senate Intelligence Committee, received 12 briefings on it.

Sen. Jay Rockefeller, D-W.V., the vice chairman of the Intelligence Committee, received six briefings. Also briefed were the House Intelligence Committee chairman Rep. Peter Hoesktra, R- Mich., and ranking Democrat Rep. Jane Harman, D- Calif. Also briefed were the majority and minority leaders of the House and Senate.

Roberts has said he is satisfied with the briefings.

Rockefeller has asked that all members of the Senate Intelligence Committee (eight Republicans and seven Democrats) get a full briefing on the program so that they can judge if it is legal and effective.

Has Rockefeller objected to the NSA program?
He said Thursday that the members of the Intelligence Committee have been “put in the untenable position of passing judgment on a program that they are prevented from understanding.”

But he has not objected to it, according to a Democratic Senate Intelligence Committee staffer.

Why were so few members briefed on the NSA program?
Senate Intelligence Committee Staff Director Bill Duhnke said the National Security Act of 1947 allows for limited briefings and “it has through custom and practice been done that way.”

Has anyone in Congress moved to cut off funding for the NSA surveillance program?
Not so far. But it remains an option. Duhnke explained that in wartime, “The president decides what he is going to do in fighting a war. Congress doesn’t decide tactically how things are going to happen. Congress doesn’t say, ‘No, you don’t do that operation,’ but if Congress wants to say, ‘No funds appropriated shall be used for the conduct of such operations, that’s its power.” 

What are the political reverberations of the NSA controversy?
Bush’s political advisor Karl Rove thinks the issue will work in favor of GOP candidates this fall. But it may cause libertarian-minded Republicans, some of whom also object to the USA Patriot Act, to question their support for GOP incumbents in this fall’s elections.

The NSA furor has also caused a split among Democrats.

Iowa Gov. Tom Vilsack, the chairman of the Democratic Leadership Council, group of centrist and business-friendly Democrats, said last week, “If the president broke the law, that's unacceptable. But I think it's debateable whether he did.”

He warned that “Democrats are falling into a very, very large political trap” by opposing the NSA surveillance. "Democrats are not going to win elections until they can reassure people they are going to keep them safe."

But Feingold said, “It’s a death knell for the Democratic Party if we say a Republican president can take all the power he wants to protect us and that he doesn’t have to follow the law. We will look weak and we will look terrible for the elections if that’s the position we take. We have to take a strong stand against illegal conduct.”

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