Defense of Eavesdropping Is Met With Skepticism in Senate

By DAVID STOUT

New York Times

February 6, 2006

WASHINGTON, Feb. 6 -- Attorney General Alberto R. Gonzales told skeptical senators today that the Bush administration's domestic eavesdropping program is legal, constitutional and vital to national security in a time of terrorism.

"I am here to explain the department's assessment that the president's terrorist surveillance program is consistent with our laws and Constitution," Mr. Gonzales testified before the Senate Judiciary Committee. "It's an early-warning system designed for the 21st century."

Mr. Gonzales said President Bush would have been irresponsible not to have authorized the National Security Agency to undertake the surveillance program after the attacks of Sept. 11, 2001. "And as with all wartime operations, speed, agility and secrecy are essential to its success," he said.

But Mr. Gonzales immediately drew skeptical, sometimes harsh reactions from committee leaders. The panel's chairman, Senator Arlen Specter, Republican of Pennsylvania, said federal law prohibits "any electronic surveillance without a court order."

And Senator Patrick J. Leahy of Vermont, the committee's ranking Democrat and, like Mr. Specter, a former prosecutor, said Mr. Gonzales's assertions were not supported by history.

"Congress has given the president authority to monitor Al Qaeda messages legally, with checks to guard against abuses when Americans' conversations and e-mails are being monitored," Mr. Leahy said. "But instead of doing what the president has the authority to do legally, he's decided to do it illegally, without safeguards."

But throughout his testimony, Mr. Gonzales refused to retreat. He said the N.S.A. eavesdropping program is authorized by the section of the Constitution pertaining to presidential powers; that Congress gave specific authority with a sweeping resolution shortly after 9/11; and that nothing in the 1978 Foreign Intelligence Surveillance Act regulating electronic eavesdropping is meant to block the N.S.A. program.

As for news accounts about the domestic eavesdropping, Mr. Gonzales said, they have been "in almost every case, in one way or another, misinformed, confused or wrong."

The attorney general was scheduled to be in front of the committee all day. As expected, the session produced heated exchanges, albeit accompanied by formal courtesy, between the witness and the lawmakers. At one point, a protester created a brief disturbance in the hearing room and was told by Mr. Specter to shut up or get out.

The 1978 FISA Act, passed in response to surveillance abuses during the cold war and Vietnam eras and by the Nixon administration, requires the N.S.A. and the Federal Bureau of Investigation to obtain warrants from a special secret court before conducting electronic surveillance of people suspected of being terrorists or spies.

Under "extraordinary" circumstances, the government can also wait 72 hours after beginning wiretaps to get a warrant. But the Bush administration did not seek to follow that procedure under the recently disclosed N.S.A. program, which monitors the international communications of some people inside the United States.

"That review process can, of necessity, take precious time," Mr. Gonzales told the panel in a written statement. He argued that the steps to obtain warrants after the fact are far more cumbersome than is generally understood, and unnecessarily shackles a nation fighting a stateless, faceless enemy whose character was illustrated by a recent terrorist message: "The Islamic youth are preparing for you what will fill your hearts with horror."

Mr. Gonzales got some early support from Senator Orrin G. Hatch, Republican of Utah. "We are faced with a war unlike any we have ever been in," Mr. Hatch said.

But Mr. Leahy took a different tack. "Now, a couple generations of Americans are too young to know why we passed this law," he said of the 1978 statute. "It was enacted after decades of abuses by the executive, including the wiretapping of Dr. Martin Luther King and other political opponents."

"Mr. Attorney General," Senator Leahy said at one point, "I'm getting the impression this administration picks and chooses what it's subject to."