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Administration Cites War Vote in Spying
Case
By ERIC LICHTBLAU and DAVID E. SANGER
NY Times
December 20, 2005
WASHINGTON, Dec. 19 - President Bush and two of
his most senior aides argued Monday that the highly
classified program to spy on suspected members of
terrorist groups in the United States grew out of
the president's constitutional authority and a 2001
Congressional resolution that authorized him to
use all necessary force against those responsible
for the Sept. 11 attacks.
Offering their most forceful and detailed defense
of the program in a series of briefings, television
interviews and a hastily called presidential news
conference, administration officials argued that
the existing Foreign Intelligence Surveillance Act
was not written for an age of modern terrorism.
In these times, Mr. Bush said, a "two-minute
phone conversation between somebody linked to Al
Qaeda here and an operative overseas could lead
directly to the loss of thousands of lives."
Mr. Bush strongly hinted that the government was
beginning a leak investigation into how the existence
of the program was disclosed. It was first revealed
in an article published on The New York Times Web
site on Thursday night, though some information
that administration officials argued could be useful
to terrorists had been omitted.
"We're at war, and we must protect America's
secrets," Mr. Bush said. "And so the Justice
Department, I presume, will proceed forward with
a full investigation."
He also lashed out again, as he did Saturday, at
Democrats and Republicans in the Senate who have
blocked the reauthorization of the broad antiterrorism
law known as the USA Patriot Act, saying they voted
for it after the Sept. 11 attacks "but now
think it's no longer necessary."
Several of the senators responded that Mr. Bush
would not accept amendments to the act that they
say are necessary to protect civil liberties and
that he would not accept a short-term renewal of
the existing law while negotiations continue.
In the first of a series of appearances Monday to
defend the intelligence operations, Attorney General
Alberto R. Gonzales told reporters that "this
electronic surveillance is within the law, has been
authorized" by Congress. "That is our
position," he added.
Officials with knowledge of the program have said
the Justice Department did two sets of classified
legal reviews of the program and its legal rationale.
Mr. Gonzales declined to release those opinions
Monday.
Two of the key Democrats who had been briefed on
the program said Monday that they had been told
so little that there was no effective Congressional
oversight for it.
In a highly unusual move, Senator John D. Rockefeller
IV of West Virginia released a letter he sent to
Vice President Dick Cheney on July 17, 2003, complaining
that "given the security restrictions associated
with this information, and my inability to consult
staff or counsel on my own, I feel unable to fully
evaluate, much less endorse these activities."
The letter was handwritten because secrecy rules
prevented him from giving it to anyone to type.
On Monday Mr. Rockefeller said that after he sent
his letter to Mr. Cheney, "these concerns were
never addressed, and I was prohibited from sharing
my views with my colleagues."
Senator Arlen Specter, the Pennsylvania Republican
who is chairman of the Judiciary Committee, said,
"I am skeptical of the attorney general's citation
of authority, but I am prepared to listen."
Mr. Specter, who has said he will hold hearings
on the program soon after the confirmation hearings
for the Supreme Court nominee, Judge Samuel A. Alito
Jr., said he did not believe the president's decision
to inform a handful of members of Congress was sufficient.
"I think it does not constitute a check and
balance," he said. "You can't have the
administration and a select number of members alter
the law. It can't be done."
Mr. Specter also predicted that the domestic spying
debate would spill over into Judge Alito's confirmation.
On Monday, he sent the judge a letter saying he
intended to ask "what jurisprudential approach"
the judge would use in determining if the president
had authority to establish the program.
"The fat's in the fire," Mr. Specter said.
"This is going to be a big, big issue. There's
a lot of indignation across the country, from what
I see."
Mr. Bush, Mr. Gonzales and Lt. Gen. Gen. Michael
V. Hayden, the nation's second-ranking intelligence
official and a former director of the National Security
Agency, which conducted the surveillance, stepped
around questions about why officials decided not
to use emergency powers they have under the existing
foreign surveillance law. The law allows them to
tap international communications of people in the
United States and then go to a secret court up to
72 hours later for retroactive permission.
"The whole key here is agility," General
Hayden said, adding that the aim "is to detect
and prevent."
Administration officials, speaking anonymously because
of the sensitivity of the information, suggested
that the speed with which the operation identified
"hot numbers" - the telephone numbers
of suspects - and then hooked into their conversations
lay behind the need to operate outside the old law.
Soon after Mr. Bush spoke, three senior Democrats
influential on national security matters - Senators
Carl Levin of Michigan, Jack Reed of Rhode Island
and Russell Feingold of Wisconsin - assailed the
president for bypassing the court that Congress
set up a quarter-century ago to make sure intelligence
agencies do not infringe on the privacy of Americans.
"He can go to the court retroactively,"
Mr. Levin, the ranking Democrat on the Armed Services
Committee, told reporters, referring to the 72-hour
rule.
Mr. Bush - who initially resisted a public investigation
into the Sept. 11 attacks and the intelligence failures
in Iraq - used his news conference Monday to discourage
Congress from publicly delving into the program,
saying that "public hearings on programs will
say to the enemy, 'Here's what they do, adjust.'
" He repeatedly cited the case of Osama bin
Laden, who was widely reported to have stopped using
a satellite telephone after news reports that intelligence
agencies were listening in.
The White House briefing itself was unusual, with
two of the administration's most senior officials
discussing legal and operational details of what
Mr. Gonzales described as "probably the most
classified program that exists in the United States
government."
Mr. Gonzales said the president had "the inherent
authority under the Constitution" as commander
in chief to authorize the program. He also argued
that the legal rationale followed the logic in a
Supreme Court decision last year in the case of
an enemy combatant named Yaser Esam Hamdi, an American
citizen who was detained in Afghanistan on the battlefield.
In addition, Mr. Gonzales said the administration
believed that Congress gave the president clear
and broad authorization to attack Al Qaeda in a
resolution passed on Sept. 14, 2001, that set the
stage for the invasion of Afghanistan. That resolution
authorized the president "to use all necessary
and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on
Sept. 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of
international terrorism against the United States
by such nations, organizations or persons."
Many members of Congress say that in authorizing
the military invasion of Afghanistan days after
the Sept. 11 attacks, they never intended or envisioned
that the authority could be applied to searches
without warrants within the United States.
Mr. Gonzales and General Hayden were careful to
emphasize that the surveillance program was "limited"
in scope.
"People are running around saying that the
United States is somehow spying on American citizens
calling their neighbors," Mr. Gonzales said.
In fact, he said, it was "very, very important
to understand" that the program is limited
to calls and communications between the United States
and foreign countries.
"What we're trying to do is learn of communications,
back and forth, from within the United States to
overseas members of Al Qaeda," he said. "And
that's what this program is about."
He added: "This is not about wiretapping everybody.
This is about a very concentrated, very limited
program focused on gaining information about our
enemy."
As the administration has argued since the disclosure
of the program Thursday night, Mr. Gonzales and
General Hayden said the normal system for issuing
warrants for a domestic surveillance operation -
required in 1978 in a program that grew out of the
improper surveillance of political dissidents -
was inadequate in some cases.
Regarding a possible leak investigation, which would
be handled by the Justice Department, Mr. Gonzales
said: "This is really hurting national security,
this has really hurt our country, and we are concerned
that a very valuable tool has been compromised.
As to whether or not there will be a leak investigation,
we'll just have to wait and see."
When questions at the news conference turned to
Iraq, Mr. Bush urged reporters to look at rationales
he offered for invading the country that went beyond
its suspected caches of weapons of mass destruction,
including his vision of creating democratic havens
in the Middle East. But he acknowledged that the
failure to find weapons in Iraq made it difficult
to make the case "in the public arena"
that countries like Iran are pursuing nuclear weapons,
as Mr. Bush has charged.
He said, "People will say, if we're trying
to make the case on Iran, well, the intelligence
failed in Iraq, therefore how can we trust the intelligence
in Iran?" Later, he added, "It's no question
that the credibility of intelligence is necessary
for good diplomacy."
Eric Schmitt and Sheryl
Gay Stolberg contributed reporting for this article.
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