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Republican Who Oversees NSA Calls for Wiretap Inquiry    [

    Senate Toughens Scrutiny of Wiretapping
    By Gail Russell Chaddock
    The Christian Science Monitor

    Wednesday 08 February 2006

Senators from both parties are asking hard questions about the president's wartime powers.

    Washington - In open hearings and behind closed doors, the Senate this week opened a broad - and often tense - dialogue with the Bush administration over the president's wartime powers.

    It's more than just a probe into who authorized what, when, and why in a recently disclosed domestic eavesdropping program. If the president is not checked, lawmakers on both sides of the aisle argue, then the constitutional balance of power could shift away from the Congress for at least a generation.

    "I'm for the president's inherent authority to conduct the war, but not to neuter the other two branches," says Sen. Lindsey Graham (R) of South Carolina, one of four Republicans on the Senate Judiciary panel to challenge the White House interpretation of presidential war powers.

    During a day of questioning, Attorney General Alberto Gonzales defended the National Security Administration's warrantless surveillance of communication between US residents and suspected terrorists abroad as necessary, lawful, and limited by checks within the administration.

    "Our enemy is listening," Mr. Gonzales told the Judiciary Committee on Monday, warning senators that further disclosure of the program, or ending it, would deprive the United States of a "key tool in the war on terror." He meets with the Select Committee on Intelligence in a closed hearing Thursday.

    On its face, the NSA surveillance program is at odds with the 1978 Foreign Intelligence Surveillance Act (FISA), which Congress designated as the "exclusive" authority for wiretaps for intelligence purposes. The law has been updated five times to keep pace with changing needs.

    During some seven hours of questioning, Gonzales refused to answer questions about how many Americans had phone calls or e-mails tapped by the NSA program, or whether it extended to opening first-class mail. These, he said, were operational questions that could jeopardize the effectiveness of the program.

    But lawmakers did challenge the attorney general to explain why the Bush administration did not first come to the Congress to amend the FISA law, before opting to work around it.

    They also questioned whether the government was using information gleaned from warrantless wiretaps to apply for warrants under the FISA process. If so, that could jeopardize current and future cases against suspected terrorists, they said.

    Gonzales said the program is triggered "only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaeda or an affiliated terrorist organization." As a check, the president reauthorizes approval for the program every 45 days - a time frame the administration set itself.

    Moreover, Article II of the Constitution and the 2001 congressional resolution authorizing use of force give the president the authority to spy on enemies like Al Qaeda "without prior approval from the other branches of government," he said.

    Such a legal interpretation of presidential powers is "a slippery slope," said Sen. Dianne Feinstein (D) of California, questioning Gonzales.

    At the root of congressional worries about the NSA surveillance case is the prospect that such broad interpretations of presidential powers could last well into the future. "We could be in this war on terror for decades," says Sen. Sam Brownback (R) of Kansas.

    Several senators cited the Federalist Papers as the authority for insisting on separation of powers and a strong system of checks and balances. "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment...," wrote James Madison in Federalist No. 10.

    In future hearings, the Justice panel is expected to call in outside legal experts and former Justice Department officials, including Attorney General John Ashcroft.

    "The attorney general's repeated refrain was, 'Trust us' - we have all the necessary checks and balances within NSA and the Justice Department," says Bruce Fein, former associate deputy attorney general under President Reagan, a potential witness in the next round of hearings.

    "The president's precedent is a permanent change in the constitutional landscape, because it has no endpoint to it. The privacy of our homes and conversations would depend solely on the discretion of the president," he adds.

 

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    Republican Who Oversees NSA Calls for Wiretap Inquiry
    By Eric Lichtblau
    The New York Times

    Wednesday 08 February 2006

    Washington - A House Republican whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration's domestic eavesdropping program.

    The lawmaker, Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, said in an interview that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why.

    Ms. Wilson, who was a National Security Council aide in the administration of President Bush's father, is the first Republican on either the House's Intelligence Committee or the Senate's to call for a full Congressional investigation into the program, in which the N.S.A. has been eavesdropping without warrants on the international communications of people inside the United States believed to have links with terrorists.

    The congresswoman's discomfort with the operation appears to reflect deepening fissures among Republicans over the program's legal basis and political liabilities. Many Republicans have strongly backed President Bush's power to use every tool at his disposal to fight terrorism, but 4 of the 10 Republicans on the Senate Judiciary Committee voiced concerns about the program at a hearing where Attorney General Alberto R. Gonzales testified on Monday.

    A growing number of Republicans have called in recent days for Congress to consider amending federal wiretap law to address the constitutional issues raised by the N.S.A. operation.

    Senator Lindsey Graham of South Carolina, for one, said he considered some of the administration's legal justifications for the program "dangerous" in their implications, and he told Mr. Gonzales that he wanted to work on new legislation that would help those tracking terrorism "know what they can and can't do."

    But the administration has said repeatedly since the program was disclosed in December that it considers further legislation unnecessary, believing that the president already has the legal authority to authorize the operation.

    Vice President Dick Cheney reasserted that position Tuesday in an interview on "The NewsHour With Jim Lehrer."

    Members of Congress "have the right and the responsibility to suggest whatever they want to suggest" about changing wiretap law, Mr. Cheney said. But "we have all the legal authority we need" already, he said, and a public debate over changes in the law could alert Al Qaeda to tactics used by American intelligence officials.

    "It's important for us, if we're going to proceed legislatively, to keep in mind there's a price to be paid for that, and it might well in fact do irreparable damage to our capacity to collect information," Mr. Cheney said.

    The administration, backed by Republican leaders in both houses, has also resisted calls for inquiries by either Congress or an independent investigator.

    As for the politics, some Republicans say they are concerned that prolonged public scrutiny of the surveillance program could prove a distraction in this year's midterm Congressional elections, and the administration has worked to contain any damage by aggressively defending the legality of the operation. It has also limited its Congressional briefings on the program's operational details to the so-called Gang of Eight - each party's leaders in the Senate and the House and on the two intelligence committees - and has agreed to full committee briefings only on the legal justifications for the operation, without discussing in detail how the N.S.A. conducts it.

    Ms. Wilson said in the interview Tuesday that she considered the limited Congressional briefings to be "increasingly untenable" because they left most lawmakers knowing little about the program. She said the House Intelligence Committee needed to conduct a "painstaking" review, including not only classified briefings but also access to internal documents and staff interviews with N.S.A. aides and intelligence officials.

    Ms. Wilson, a former Air Force officer who is the only female veteran currently in Congress, has butted up against the administration previously over controversial policy issues, including Medicare and troop strength in Iraq. She said she realized that publicizing her concerns over the surveillance program could harm her relations with the administration. "The president has his duty to do, but I have mine too, and I feel strongly about that," she said.

    Asked whether the White House was concerned about support for the program among Republicans, Dana Perino, a presidential spokeswoman, said: "The terrorist surveillance program is critical to the safety and protection of all Americans, and we will continue to work with Congress. The attorney general testified at length yesterday, and he will return to Capitol Hill twice more before the week ends."

    Aides to Representative Peter Hoekstra of Michigan, who as chairman of the full House Intelligence Committee is one of the eight lawmakers briefed on the operations of the program, said he could not be reached for comment on whether he would be open to a full inquiry.

    Mr. Hoekstra has been a strong defender of the program and has expressed no intention thus far to initiate a full review. In two recent letters to the Congressional Research Service, he criticized reports by the agency that raised questions about the legal foundations of the N.S.A. program and the limited briefings given to Congress. He said in one letter that it was "unwise at best and reckless at worst" for the agency to prepare a report on classified matters that it knew little about.

    But two leading Democratic members of the intelligence committees, Representative Jane Harman and Senator Dianne Feinstein, both of California, wrote a letter of their own Tuesday defending the nonpartisan research service's reports on the surveillance program and other issues, saying its work had been "very helpful" in view of what they deemed the minimal information provided by the administration.

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    Scott Shane contributed reporting for this article.

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