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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
03/01/06 "Washington
Post" -- -- 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
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