President Bush yesterday took direct aim at Democratic critics on Capitol Hill who charge that a secret spy program he ordered in 2002 is illegal, saying, “If I wanted to break the law, why was I briefing Congress?”
Opening a three-day White House offensive to defend his decision to create the covert program, the president told nearly 10,000 people at Kansas State University that he has the authority under the Constitution to conduct foreign intelligence, as well as legislative approval granted by Congress three days after the September 11, 2001, terrorist attacks.
“Congress gave me additional powers to use force, but it didn’t prescribe the tactics,” Mr. Bush said, adding a protest against one of the most common ways to describe the program — “domestic spying.”
“I repeat to you, even though you hear words, ‘domestic spying,’ these are not phone calls within the United States,” he said, insisting that the program is “what I would call a terrorist surveillance program.”
He said the government needs to know why people linked to al Qaeda are contacting people in the United States — the main goal of the secret program, which was revealed last month by the New York Times.
“Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority,” Mr. Bush said.
The president signed a secret order in 2002 that authorized the National Security Agency to intercept international phone calls and e-mails to and from the United States that include at least one party who is a known or suspected al Qaeda member or affiliate.
Although the White House informed at least eight members of Congress — including four Democrats — of the program, members of the minority party in the House and Senate have complained that the president has overstepped his authority.
“One of the ways to protect the American people is to understand the intentions of the enemy,” he said yesterday, adding that is what prompted him to order the creation of the program.
“If they’re making phone calls into the United States, we need to know why — to protect you,” Mr. Bush said, drawing applause from the unscreened crowd.
Shortly after the president’s speech, Senate Minority Leader Harry Reid implied that Mr. Bush is breaking the law and criticized the “president’s continued refusal to come clean with the American people about domestic spying.”
Democratic National Committee Chairman Howard Dean went further, “The question remains: Why did President Bush deliberately choose to break the law?”
The president dismissed the criticism with a rhetorical question. “You know, it’s amazing, when people say to me, ‘Well, he was just breaking the law’ — if I wanted to break the law, why was I briefing Congress?”
The crowd of 6,000 students, 1,000 military personnel from Fort Riley and others responded with laughter and applause. Congressional hearings on the NSA program are set to begin Feb. 6.
Critics say the NSA program violates both the Constitution and the 1978 Foreign Intelligence Surveillance Act (FISA), which declares itself “the exclusive means by which electronic surveillance … and the interception of wire and oral communications may be conducted.”
Mr. Bush cited as support for his claims a court case, Hamdi v. Rumsfeld, in which an American citizen whom the government has classified as an “enemy combatant” sued Secretary of Defense Donald H. Rumsfeld.
“The Supreme Court ruled that [the congressional resolution] gave the president additional authority to use what it called ‘the fundamental incidents of waging war’ against al Qaeda,” Mr. Bush said.
The argument is further spelled out in a detailed Department of Justice “white paper” — a 42-page defense of the president’s spy program that was released Friday.
“Of vital importance to identifying the enemy and detecting possible future plots was the authority to intercept communications to or from the United States of persons with links to al Qaeda or related terrorist organizations,” the paper said.
Meanwhile yesterday, former National Security Agency director Air Force Gen. Michael Hayden said the Bush spy program is not as wide-ranging as has been described by critics.
“This isn’t a drift net out there where we’re soaking up everyone’s communications,” said Gen. Hayden, who headed the agency when the program was adopted.
He also said the 28-year-old FISA law was not sufficient to meet the post-September 11 terror threat.
“I don’t think that anyone can make the claim that the FISA statute is optimized to deal or prevent a 9/11 or deal with a lethal enemy who likely already had combatants inside the United States,” Gen. Hayden said.