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  • Wednesday, March 01, 2006


    Additional Prevarications from Attorney General Gonzales

    Gonzales Seeks to Clarify Testimony on Spying

    Extent of Eavesdropping May Go Beyond NSA Work

    By Charles Babington and Dan Eggen
    Washington Post Staff Writers
    Wednesday, March 1, 2006; A08

    Attorney General Alberto R. Gonzales appeared to suggest yesterday that the Bush administration's warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December.

    In a letter yesterday to senators in which he asked to clarify his Feb. 6 testimony to the Senate Judiciary Committee, Gonzales also seemed to imply that the administration's original legal justification for the program was not as clear-cut as he indicated three weeks ago.

    At that appearance, Gonzales confined his comments to the National Security Agency's warrantless wiretapping program, saying that President Bush had authorized it "and that is all that he has authorized."

    But in yesterday's letter, Gonzales, citing that quote, wrote: "I did not and could not address . . . any other classified intelligence activities." Using the administration's term for the recently disclosed operation, he continued, "I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject" of the Feb. 6 hearing.

    At least one constitutional scholar who testified before the committee yesterday said in an interview that Gonzales appeared to be hinting that the operation disclosed by the New York Times in mid-December is not the full extent of eavesdropping on U.S. residents conducted without court warrants.

    "It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about," said Bruce Fein, a government lawyer in the Nixon, Carter and Reagan administrations.

    A Justice Department official who spoke only on the condition of anonymity because of the sensitive nature of the program, said, however, that Gonzales's letter "should not be taken or construed to be talking about anything other than" the NSA program "as described by the president."

    In his letter, Gonzales revisited earlier testimony, during which he said the administration immediately viewed a congressional vote in September 2001 to authorize the use of military force against al-Qaeda as justification for the NSA surveillance program. Bush secretly began the program in October 2001, Gonzales's letter said.

    On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."

    But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."

    Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."

    One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification.

    Ranking Judiciary Committee Democrat Patrick J. Leahy (Vt.) said Gonzales's letter falls "far short of helping us focus this picture. Instead, they blur it further with vague responses about their shifting legal analysis for this illegal domestic spying and with unclear clarifications on the scope of the program over the last four years."

    Also yesterday, the Senate voted 69 to 30 to end a filibuster of the proposed four-year extension of the USA Patriot Act, the sweeping anti-terrorism law enacted in 2001. The Senate plans today to approve the measure, which contains hotly debated modifications.

    In a morning Judiciary Committee hearing, hours before Gonzales's letter was released, Fein was one of several constitutional experts who sharply challenged the constitutionality of the NSA program. Other scholars and former CIA director R. James Woolsey strongly defended it.

    Bush has acknowledged that he authorized the NSA to monitor phone calls and e-mails involving one party in the United States and one abroad, provided that federal agents suspect one party of terrorist ties. The administration contends that the program is not covered by the 1978 Foreign Intelligence Surveillance Act, which established a secret court to consider government requests to wiretap U.S. citizens and residents in terrorism and espionage cases.

    Numerous lawmakers, including Judiciary Committee Chairman Arlen Specter (R-Pa.), disagree. Specter says the NSA program violates the FISA law, and he is proposing legislation that would allow the FISA court to rule on the program's constitutionality and to oversee aspects of the surveillance operations.

    Woolsey, President Bill Clinton's first CIA director, defended the eavesdropping program.

    "The one-spy-at-a-time surveillance systems of the Cold War -- including FISA, through courts -- are not designed to deal with fast-moving battlefield electronic mapping" of today's terrorism fight, he said. "An al-Qaeda or a Hezbollah computer might be captured which contains a large number of e-mail addresses and phone numbers which would have to be checked out very promptly," he said, and the FISA warrant process is too cumbersome to allow it.

    © 2006 The Washington Post Company


    Senator Leahy's Prepared Statement for Feb. 28, 2006 Hearing on NSA Surveillance

    Statement Of Senator Patrick Leahy, Ranking Member, Judiciary Committee, Hearing On "Wartime Executive Power And The NSA's Surveillance Authority II" February 28, 2006

    Today’s hearing is our second to explore the legality of President Bush’s warrantless domestic spying program. On December 17, 2005 – one day after the existence of the program was reported by The New York Times – the President admitted that the Bush-Cheney Administration has engaged in secret wiretapping of ordinary Americans without warrants for more than four years. Seven weeks later, Attorney General Gonzales was called before this Committee and provided unsworn testimony about the program.

    That testimony was far from complete and left many important questions unanswered. At that hearing, we had before us the chief legal officer of the United States. He is not the President’s legal advisor; he is the American people’s lawyer. His sworn duty is to uphold and enforce the Constitution and the laws enacted by Congress — including the Foreign Intelligence Surveillance Act, which we have amended five times since the September 11 attacks. It seemed reasonable to start by asking him about how his Department of Justice has and will interpret those laws. Also, by starting with legal questions, we avoided raising any operational issues that could conceivably implicate national security concerns. So I asked the Attorney General a simple question: When did the Administration come up with its current theory that the congressional resolution authorizing the use of military force against al Qaeda – a resolution that says nothing at all about wiretapping -- also authorized secret, warrantless wiretapping of Americans inside the United States? At every opportunity, the Attorney General failed and refused to answer this basic factual question.

    The Attorney General was asked several times to clarify the scope of the Bush-Cheney Administration’s legal theory of Executive power. If, as they claim, they can ignore FISA’s express prohibition of warrantless wiretapping, can they also eavesdrop on purely domestic phone calls? Can they search or electronically bug an American’s home or office? Can they comb through Americans’ medical records and open first-class mail? Can they suspend the Posse Comitatus Act? These are questions to which Congress and the American people deserve answers. Based on his testimony and persistent refusals to answer responsively, it appears the Attorney General, whose job it is to enforce the laws, has a radically different understanding of the laws than do many of us -- the people’s representatives in Congress who wrote the laws. The Attorney General refused to answer questions – even legal and hypothetical questions – but limited his appearance to confirming “those facts the President has publicly confirmed, nothing more.” In a last-minute change to his prepared testimony he also followed the path of his predecessor by playing politics on important security matters, hoping to intimidate Senators who asked questions and sought to get to the facts.

    Senators from both parties took great care to ask straightforward questions about the program that could be answered without danger to national security. When did the program begin? How many Americans have had their calls and emails intercepted? Has the program led to any arrests? What involvement, if any, has the FISA Court had with the program? Why was the program shut down in 2004, and was its scope changed in 2004? Once again, we got no answers. Attorney General Gonzales refused to answer a simple “yes or no” question regarding the role of telephone companies and ISPs in implementing the program. He asserted that the program was “very narrowly tailored,” but he pointedly refused to say whether earlier versions of the program were likewise “narrowly tailored,” or whether the President has authorized other, broader secret surveillance programs inside the United States – for example, programs that may involve warrantless physical searches or large-scale data-mining.

    In short, we learned almost nothing from our prior hearing. So far as the Attorney General was concerned, any question that was not limited to confirming the current version of the specific program the President described in December was irrelevant or hypothetical, even if it went to the core of the Administration’s legal justifications. And any question that was about that program amounted to a request for “operational details” that the American people have no business knowing, even if those questions were confined to the purely historical question of when the program began. Whatever we asked, it was either too relevant or not relevant enough, and either way, we were getting no answers from the Attorney General.

    There was, briefly, one crack in the stone wall he erected. It has been reported that senior Department of Justice officials concluded in 2004 that the President’s program was illegal and, backed by former Attorney General Ashcroft, insisted that its scope be narrowed. So Chairman Specter asked the Attorney General whether he had any objection to his predecessor testifying before the Committee on this issue. Attorney General Gonzales replied: “I would not.” One week later, in a carefully worded about-face, he had an assistant write to Chairman Specter that the Bush-Cheney Administration would not permit any former officials to provide any new information to the Committee. The stone wall was back up.

    Attorney General Gonzales’ conduct has made the Bush-Cheney Administration’s position crystal clear: It claims there is no place for congressional or judicial oversight of any of its activities in any way related to national security in the post-9/11 world. Through stonewalling, steamrolling and intimidation, this Administration is running roughshod over the Constitution and hiding behind inflammatory rhetoric demanding Americans blindly trust every one of its decisions. Just last week we were reminded, again, that they hold to that position even when bipartisan members of Congress raise national security concerns about the approval of a government-owned Dubai company taking over port operations in the United States. There are some striking parallels between the warrantless wiretapping program and approval of the takeover of most of our key ports on the East Coast by a firm controlled by a foreign government that has previous ties to Osama bin Laden, to terrorist financing and to the proliferation of nuclear weapons technology by Ali Khan. In both cases, this obsessively secretive Administration proceeded with action that it must have known would face strong bipartisan opposition and did so without informing Congress or the American people. In both cases, the Administration made no attempt whatsoever to follow even the confidential review processes mandated by specific and express federal statutes: the FISA Court warrant requirement in the wiretapping case, and the 45-day review requirement of the Exon-Florio law in the case of the ports deal. And in both cases, the Bush-Cheney Administration has responded to bipartisan efforts at congressional oversight with bellicose political threats.

    Will the Republican Congress fulfill its constitutional duty of providing the checks and balances envisioned by the Framers by engaging in real and effective oversight, or will it continue to abdicate its oversight role in deference to the other end of Pennsylvania Avenue?

    Chairman Specter has a history of engaging in meaningful, bipartisan oversight and I very much appreciate his efforts thus far to lead a bipartisan quest for straight answers on this illegal domestic surveillance program. I am glad that we are having today’s hearing. But we should be clear about what today’s hearing is, and is not. It is not an oversight hearing. Through Attorney General Gonzales, the Bush-Cheney Administration has refused to answer oversight questions and refused to allow former officials to answer them. At this point, meaningful oversight of the Government’s actions can only be achieved by subpoenas backed by threat of real congressional sanctions if the Bush-Cheney Administration continues to stonewall.

    Our hearing today will be an academic panel discussion featuring commentators who have not witnessed or played any role in the program that they are discussing, and who know no more than the very minimal facts about the program that the President has chosen to divulge. This is an important discussion to have to help this Committee, Congress and the American people understand our legal landscape, and what consequences this illegal program has on our system. These are scholars and former government officials with a great deal of expertise in the law or in the intelligence field. I greatly appreciate their analysis, just as I appreciate the analysis of former President Jimmy Carter, former FBI Director William Sessions, conservative columnist George Will, and the many other scholars and former government officials who have concluded that this program violates the Foreign Intelligence Surveillance Act and threatens the constitutional separation of powers. But today’s hearing is no substitute for the vigorous and forceful oversight this Congress owes the American people.

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