WASHINGTON — Attorney General Alberto Gonzales insisted Monday that President Bush is fully empowered to eavesdrop on Americans without warrants as part of the war on terrorism. He exhorted Congress not to end or tinker with the program.
Gonzales’ strong defense of Bush’s program was challenged by Republican Sen. Arlen Specter, chairman of the Judiciary Committee, and committee Democrats during sometimes contentious questioning.
Specter told Gonzales that even the Supreme Court had ruled that “the president does not have a blank check.” Specter suggested that the program’s legality be reviewed by a special federal court set up by the 1978 Foreign Intelligence Surveillance Act.
The attorney general sidestepped the question directly, just saying, “Obviously, we would consider and are always considering methods of fighting the war effectively against al-Qaida.”
However, he said that court was already quite familiar with the program. He also said he did not think the 1978 law needed to be modified.
And, said Gonzales, “To end the program now would afford our enemy dangerous and potential deadly new room for operation within our borders.”
White House reaction
At the White House, presidential spokesman Scott McClellan declined to say how the administration would respond to Specter’s suggestion that the program be reviewed by the special federal court. McClellan said he didn’t want to provide “on-the-spot analysis” of Gonzales’ testimony or “get into ruling things in, or out, from this podium.”
“This is something that we’ve briefed members of Congress on over the course of the last several years. We will continue to brief members of Congress about this vital program,” McClellan said. The administration gave classified updates on the surveillance program to just eight congressional leaders.
Specter told Gonzales that federal law “has a forceful and blanket prohibition against any electronic surveillance without a court order.”
While the president claims he has the authority to order such surveillance, Specter said, “I am skeptical of that interpretation.”
A former Texas judge, Gonzales played an important role as White House counsel in developing the legal justification for the spy program. He served in that post from January 2001 to February 2005.
NSA official explains scope of program
A senior National Security Agency official told NBC News on Monday that “at no time were there ever more than 100 Americans” having their communications intercepted by the agency. The official would not confirm the total figure of 5,000 reported over the weekend by The Washington Post, but would not deny it either.
The official also said that he knows “of no law prohibiting the NSA from intercepting anything but phone calls,” indicating the NSA believes it can, within the law, intercept other communications like e-mails and instant messages.
The growth in al-Qaida and other terrorist groups' use of digital communications, along with the understanding of the threat, has led to a dramatic increase in the number of NSA analysts by 100-fold, from 40 on Sept. 11, 2001 to more than 4,000 today. The official specifically mentioned al-Qaida's use of instant messaging as one reason for the increase in analysts.
Sharp questions from Democrats
Committee Democrats, who have generally contended that Bush is acting illegally in permitting domestic surveillance by the NSA, sharply grilled Gonzales on Monday.
Sen. Patrick Leahy, D-Vt., asked if the authorization Bush claims to have would also enable the government to open mail — in addition to monitoring voice and electronic communications.
“There is all kinds of wild speculation out there about what the president has authorized and what we’re actually doing,” Gonzales said.
“You’re not answering my question,” Leahy retorted. “Does this law authorize the opening of first-class mail of U.S. citizens? Yes or no?”
“That’s not what’s going on,” Gonzales said. “We are only focusing on international communications, where one part of the conversation is al-Qaida.”
Gonzales said the fact that the nation is at war gives the president more powers than during peacetime. “The president is acting with authority both by the Constitution and by statute,” he said.
Gonzales called the eavesdropping program “reasonable” and “lawful,” and said much of the published criticism about it was “misinformed, confused or wrong.”
Confrontation from the start
Monday’s hearing got off to a rocky start when Republicans and Democrats disagreed over whether Gonzales should be sworn in. Democrats said he should, but Specter said it wasn’t necessary.
He wasn’t. “My answers would be the same whether I was under oath or not,” Gonzales told the panel.
Gonzales reiterated the administration’s contention that Bush was authorized to allow the NSA to eavesdrop, without first obtaining warrants, on people inside the United States whose calls or e-mails may be linked to terrorism.
Sen. Edward M. Kennedy, D-Mass., told Gonzales the administration broke with the time-honored system of checks and balances by not seeking greater congressional cooperation.
Kennedy says program is ‘unwise’ risk
Kennedy said the eavesdropping program could actually weaken national security, raising the prospect that terrorist suspects could go free if courts rule evidence collected from such surveillance to be tainted.
“We’re taking a risk with national security which I think is unwise,” Kennedy said.
“We don’t believe prosecutions are going to be jeopardized because of this program,” Gonzales told Kennedy.
Gonzales declined to discuss details of the operation, as skeptics of the program have demanded. “An open discussion of the operational details of this program would put the lives of Americans at risk,” he said.
The program has sparked a heated debate about presidential powers in the war on terrorism since it was first disclosed in December.
Gonzales argued that Congress did, in fact, authorize the president in September 2001 to use military force in the war on terrorism.
He noted that the legislation “calls on the president to protect Americans both ’at home and abroad,”’ and “to take action to prevent further terrorist attacks ’against the United States.”’
But congressional Democrats have said they did not intend to order domestic surveillance.
‘This isn’t a drift net’
News accounts have suggested the program vacuums up vast amounts of communications and sifts through them for possible links to terrorists. Gen. Michael Hayden, the nation’s No. 2 intelligence official, rejected that, saying on Sunday that the NSA first establishes a reason for being interested in the calls or e-mails.
“This isn’t a drift net over Lackawanna (N.Y.) or Fremont (Calif.) or Dearborn (Mich.), grabbing all communications and then sifting them out,” Hayden said of three U.S. cities with sizable Muslim populations.
Sen. Dianne Feinstein, D-Calif., told Specter last week that he should compel the Justice Department to turn over classified legal opinions on the program, using subpoenas if necessary.
Specter said Sunday he’s open to that. “If the necessity arises, I won’t be timid,” he said.
More officials may be called
The Judiciary Committee’s Democrats want Specter to call more administration officials for questioning, including former Attorney General John Ashcroft and ex-Deputy Attorney General Jim Comey, both of whom reportedly objected to parts of the program.
Specter said such appearances were possible.
The committee chairman asked Gonzales if he would have any objections to Ashcroft’s appearance before the committee on the spy program. Gonzales told Specter his committee could ask whomever they wanted to appear. “Senator, I don’t think I would have an objection.”
The Associated Press and NBC News' William Arkin and Robert Windrem contributed to this report.