- The Washington Times - Monday, February 6, 2006

The chairman of the Senate Judiciary Committee yesterday said the Bush administration does not have congressional authority to conduct warrantless eavesdropping on overseas phone calls.

“I believe that contention is very strained and unrealistic,” said Sen. Arlen Specter, who today begins oversight hearings into the legality of the program officials say is designed to spy on terrorists.

Attorney General Alberto R. Gonzales will be the star witness, and in testimony obtained by The Washington Times, will tell the panel use of the searches was limited and lawful.

“This administration has chosen to act now to prevent the next attack with every lawful tool at its disposal, rather than wait until it is too late,” Mr. Gonzales said. “It is hard to imagine a president who would not elect to use these tools in defense of the American people — in fact, it would be irresponsible to do otherwise.

“The terrorist surveillance program is both necessary and lawful. Accordingly, as the president has explained, he intends to continue to exercise this authority as long as al Qaeda poses such a grave threat to the national security. If we conduct this reasonable surveillance while taking special care to preserve civil liberties, as we have, we can all continue to enjoy our rights and freedoms for generations to come,” Mr. Gonzales said.

His statement cites references to the program’s use and the defense of it by the Clinton administration under the Fourth Amendment, which prohibits unreasonable searches and seizures.

“The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack from ordinary general crime control,” Mr. Gonzales says. “This conclusion is by no means novel.

“During the Clinton administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the president has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.

“The key question under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. Determining the reasonableness of a search for Fourth Amendment purposes requires balancing privacy interests with the government’s interests and ensuring that we maintain appropriate safeguards,” Mr. Gonzales said.

“Although the terrorist surveillance program may implicate substantial privacy interests, the government’s interest in protecting our nation is compelling,” he said.

However, Mr. Specter says the congressional authorization for the use of force “doesn’t say anything about electronic surveillance.”

“The issue was never raised with the Congress,” Mr. Specter told NBC’s “Meet the Press.”

“And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can’t undertake that kind of surveillance without a court order,” Mr. Specter said.

Mr. Gonzales told Mr. Specter in a letter that if the administration asked for the authority from Congress, it would be denied.

“It’s very hard, in that kind of a context, to claim that Congress intended to give the authority if the administration thought the Congress would turn it down,” Mr. Specter said.

The Foreign Intelligence Surveillance Act of 1978 also allows eavesdropping without a court warrant so long as it is reported to the FISA Court within 72 hours. When President Carter signed it into law, it was “a presidential concession as to who had the authority,” Mr. Specter said. “Congress exercised it by passing the law and the president submitted to it.”

Appearing on “Fox News Sunday,” Gen. Michael V. Hayden, the principal deputy director of national intelligence, says there was some discussion with congressional leaders who were briefed on the program’s activities about amending FISA through law.

“And there was agreement among congressional leaders that that would be very difficult to do without revealing too much about the program,” Gen. Hayden said.

The administration uses the FISA process “a great deal in this current war against terrorism.” However, Gen. Hayden said, “the FISA process doesn’t give us the speed and agility to do what this program is designed to do.”

“This is detect and prevent attacks. This is not about long-term surveillance to gather reams of intelligence against a stable and a fixed target,” he said.

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