What we learned from Gonzales

Attorney General Alberto Gonzales shakes hands with Sen. Edward Kennedy, D-Mass., prior to defending President Bush's domestic electronic surveillance program before the Senate Judiciary Committee.Dennis Cook / AP

WASHINGTON -- For now, National Security Agency spying will continue.

The members of the Senate Judiciary Committee grilled Attorney General Alberto Gonzales Monday about the surveillance program conducted by the National Security Agency beginning after the Sept. 11, 2001 terrorist attacks.

As ordered by President Bush, the spy agency has been conducting surveillance of international communications between al Qaida suspects and affiliates with people inside the United States, including American citizens.

Here are some questions and answers about the Gonzales testimony:

Did the attorney general shed light on how the NSA program operates, who it is targeting, and how the Bush administration is pursuing suspects?

Gonzales refused to reveal much about the NSA program, other than to say it targeted only al Qaida members, affiliates of al Qaida and those people inside the United States with whom al Qaida is in contact. He likened the NSA surveillance to “series of radar outposts designed to detect enemy movements.”

After this testimony, can we be sure innocent Americans --  those who have had no  contact with al Qaida -- aren’t being spied on?
Gonzales gave this answer to questions from Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., and Sen. Joseph Biden, D- Del., “The program, as operated, is a very narrowly tailored program.... I am told by the operations folks (at NSA ) to a great degree of certainty, to a high degree of confidence, that these calls are solely international calls.”

But he later told Biden, “I can’t give you absolute assurance of the kind you’ve asked for” – that innocent Americans are not being spied on. He referred Biden to Gen. Michael Hayden, the Principal Deputy Director for National Intelligence for further answers.

Gonzales said the NSA had guidelines in place to prevent non-al Qaida-connected Americans from being spied on. Do we have any idea what those guidelines are?
He didn’t provide details other than to vouch for the professionalism of the NSA officials conducting the surveillance program and the review by the Justice Department and the NSA inspector general.

At Monday’s hearing, did members of the Judiciary Committee call for an immediate end to the program or a cut-off of its funding?


When asked during a break in the hearings about a possible cut-off of funding for the NSA program, Sen. Edward Kennedy, D-Mass., said the question was premature, “This is the first part of a series of hearings. We’ve got to have the hearings because we haven’t got all the information obviously that we need.”

Caroline Frederickson, the director of the Washington legislative office of the American Civil Liberties Union, who was at Monday’s hearing, said, “Congress has a variety of powers, it can conduct oversight, it can take appropriate actions, there are criminal sanctions after people leave office, and there are many different ways to get at this. The most important thing is that they stop it.”

Frederickson added that first Congress needed to conduct hearings to find out what the NSA is doing and “if it can go further and stop the program by denying funds, I think that would be a very positive step.”

Why did the Sept. 14, 2001 congressional resolution authorizing the use of force against al Qaida keep coming up at Monday’s hearing?
It was central to the hearing because Gonzales rested much of his case on the language in that resolution in which Congress gave Bush permission “to use all necessary and appropriate force” to combat al Qaida and to deter its attacks.

Democrats on the committee and at least two Republicans, Sen. Lindsey Graham of South Carolina and Specter, said that in 2001 they hadn’t understood the resolution to include authorization for NSA surveillance.

But Gonzales insisted that spying was included in the use of force resolution.

“We all agree it is necessary and appropriate use of force to fire bullets and missiles at al Qaida strongholds,” Gonzales said. “Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept al Qaida’s phone calls? The term ‘necessary and appropriate force’ must allow the president to spy on our enemies, not to shoot at them blindly hoping we might hit the right target.”

Did any members of the committee urge Gonzales to seek specific permission from Congress to carry on the program?
Yes, four Republicans did urge Gonzales to seek authorization of the NSA spying, either from a special court set up by the 1978 Foreign Intelligence Surveillance Act (FISA) or from Congress itself.

Some legal scholars say the FISA law is the only way the surveillance can be authorized and that the Bush administration has circumvented FISA.

But Gonzales told Judiciary Committee chairman Specter, that the FISA law does allow for another statute — in this case, the Sept. 14, 2001 resolution — to permit surveillance.

“You think you’re right, but there are a lot people who think you’re wrong,” Specter told the attorney general. “As a matter of public confidence, why not take it to the FISA court? What do you have to lose if you’re right?”

Republican senators Graham, Mike DeWine of Ohio, and Sam Brownback of Kansas urged Gonzales to work with Congress to either amend the FISA law or in some other way get congressional permission for the NSA spying.

DeWine told Gonzales the president must “come to Congress for statutory authorization to continue such actions…. The president and this country would be stronger if he did come to the Congress for such specific statutory authorization.”

But as Gonzales told Sen. Herb Kohl, D- Wisc., the Bush administration has little confidence in the ability of Congress to keep secrets. “The legislative process is one in which it is pretty difficult to keep certain information confidential…. I’m concerned that that process will inform our enemies about what we’re doing and how we’re doing it,” he said.

Is the NSA program opening first-class mail or opening e-mails?
Gonzalesdid not give an explicit answer to that question. 

In his testimony, how did Gonzales seek to win the public relations battle over the NSA surveillance?
He said ending the NSA program would leave Americans vulnerable to al Qaida attacks.

“I cannot help but wonder if they (al Qaida leaders) aren’t shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place — and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror,” he told the committee.