Bush Administration Steps Up Defense of Eavesdropping

By JOHN O'NEIL

New York Times

January 24, 2006

Continuing the Bush administration's stepped up defense of the National Security Agency's eavesdropping program, Attorney General Alberto R. Gonzales today cited a long history of military surveillance conducted without warrants, going back to George Washington's reading of captured mail between the British and Americans during the Revolutionary War.

In a speech at Georgetown University, Mr. Gonzales also said that it was crucial for the president to be able to act quickly on the professional judgment of intelligence experts to gather information on potential plots.

The wiretaps only involved calls or e-mail between someone in the United States and someone in a foreign country "when experienced intelligence experts have reason to believe that one party to the communication is a member of Al Qaeda or has an affiliation with it," Mr. Gonzales said.

Mr. Gonzales's speech follows up a lecture given on Monday by President Bush, in which he labeled the wiretaps a "terrorist surveillance program."

Earlier Monday, Gen. Michael V. Hayden, the nation's second-ranking intelligence official, laid out new operational details about the program in a speech in Washington, including the destruction of "accidental" interceptions and the security agency's line of command in approving wiretaps without warrants. And on Wednesday Mr. Bush is to visit the National Security Agency in Fort Meade, Md., to discuss the program.

Mr. Gonzales's speech today laid out a variety arguments for the legal basis for the secret program, which has drawn widespread fire from Democrats and some Republicans since it was disclosed last month.

He said the program fell well within the president's inherent powers under the Constitution to protect the country. Along with Washington's spy program during the Revolutionary War, he cited the interception of telegrams during the Civil War, and orders by Woodrow Wilson during World War I and Franklin D. Roosevelt during World War II to intercept communications between foreign countries and the United States. "All these were without warrants," Mr. Gonzales said.

He also cited the resolution Congress passed just after the terror attacks on Sept. 11, 2001, authorizing the use of force against people involved in the plot, and quoted from a Supreme Court ruling written by Justice Sandra Day O'Connor, in the case of Hamdi v. Rumsfeld, that dealt with the resolution.

Justice O'Connor wrote that the even though the resolution did not spell out a right to detain Taliban fighters, the vote had implicitly given Mr. Bush the power to do so because such detentions are "so fundamental and accepted an incident to war."

Mr. Gonzalez argued that by extension, the resolution also permitted military surveillance, in this case of terrorists linked to Al Qaeda, without "cataloguing the actions it would authorize."

On Monday, President Bush also cited the Hamdi case, saying that the ruling showed that the resolution gave him "additional powers."

Mr. Gonzalez also said that the secret wiretapping program was not in conflict with the Foreign Intelligence Surveillance Act, the 1978 law setting up a special court to hear requests for intelligence wiretapping warrants. He said that the Congressional resolution after the 9/11 attacks had given the president the right to go around that procedure when military necessity required a faster approach.

"We have to remember that we're talking about a wartime intelligence program," he said. To achieve the "necessary speed and agility," the government has "to leave decisions about particular intercepts to the expertise of intelligence officers."

Even the emergency procedure for retroactive approval by the courts was too cumbersome, he said.

"It's hard to imagine a president, any president, who wouldn't use these tools," he said, adding that not doing so would be "irresponsible."

In contrast to Mr. Gonzales' discussion of the legal side to the issue, General Hayden, who led the security agency at the time of the Sept. 11 attacks and who has been Mr. Bush's point man on the eavesdropping program, gave a highly unusual look into some aspect of its operational side.

General Hayden refused to say in the face of often sharp questioning exactly how the agency determined that an American's phone call or e-mail message might "involve Al Qaeda" before eavesdropping on it.

"Clearly not every lead pans out from this or any other source," the general said, "but this program has given us information that we would not otherwise have been able to get. It's impossible for me to talk about this any more in a public way without alerting our enemies to our tactics or what we have learned. I can't give details without increasing the danger to Americans. On one level, believe me, I wish that I could. But I can't."

Democrats and some Republicans have attacked the program as illegal and unconstitutional, and an analysis by the nonpartisan Congressional Research Service has strongly questioned its legal underpinnings and the limited briefings that Congressional leaders were given about it.

Leading Democrats said on Monday that they found the White House's latest line of defense to be unpersuasive, with Senator Harry Reid of Nevada, the Senate Democratic leader, saying Mr. Bush's speech reflected a refusal to "come clean" with the public.

"I am eager for the Bush administration to level with the American people and participate fully and openly in upcoming Congressional hearings," scheduled for Feb. 6 in the Senate, Mr. Reid said. "We can be strong and operate under the rule of law."

But the White House, framing the controversy from the perspective of the country's will to fight terrorism, sought on Monday to recast the very language surrounding the debate.

Mr. Bush, for the first time, called his decision to authorize the interceptions part of a "terrorist surveillance program," a phrase meant to convey that only members of Al Qaeda and their associates were falling into the net of the security agency.

General Hayden took issue with the many news reports that have referred to a "domestic spying" program. Saying the program is not really domestic in nature, he emphasized that it was limited to calls and e-mail in which one end of the communication was outside the United States and which "we have a reasonable basis to believe involve Al Qaeda or one of its affiliates."

At the same time, General Hayden acknowledged that some purely domestic communications might be accidentally intercepted. The New York Times reported last month that this appeared to have happened in a small number of cases because of the difficulties posed by globalized communications in determining whether a phone call or e-mail message was truly "international."

"If there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported," General Hayden said.

John O'Neil reported from New York for this article. David E. Sanger contributed reporting from Manhattan, Kan., and Eric Lichtblau from Washington.