Attorney General Alberto R. Gonzales warned the Senate Judiciary Committee yesterday about the sensitive nature of President Bush’s warrantless surveillance program aimed at capturing communications between terrorist plotters.
“Our enemy is listening,” he said during testimony before the committee. “I cannot help but wonder if they aren’t shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.”
But even before the first question was asked, the hearings stalled for 10 minutes in partisan rancor over whether Mr. Gonzales would raise his right hand and promise to tell the truth during his testimony. Democrats, who said Mr. Gonzales wasn’t truthful during his confirmation hearings last year because he didn’t expose the classified program, argued that he should be sworn in.
Mr. Gonzales agreed to do so, but added that it wouldn’t change his testimony. Chairman Arlen Specter, the Pennsylvania Republican who ordered the hearings, decided the high-profile photo opportunity wasn’t necessary.
“This is really not a very good way to begin this hearing,” Mr. Specter observed after taking a vote of the committee to uphold his decision. “But I found that patience is a good practice here.”
During his opening statement, Sen. Patrick J. Leahy, Vermont Democrat and the committee’s ranking member, invoked the history of past White House wrongdoing.
The Foreign Intelligence Surveillance Act (FISA) “was enacted after decades of abuses by the executive, including the wiretapping of Dr. Martin Luther King and other political opponents,” he said, referring to FBI surveillance of the civil rights leader authorized by the Kennedy administration in 1963.
The FISA court is a secret court specifically created to provide warrants aimed at gathering foreign intelligence.
“While FISA’s appropriate for general foreign-intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against al Qaeda,” Mr. Gonzales said. “Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time.”
Sen. Edward M. Kennedy, Massachusetts Democrat, rejected that argument, saying the program could actually undermine national security. He said courts might bar from trials the evidence gathered by the surveillance program, possibly leading them to throw out criminal cases against terror suspects.
“We’re taking a risk with national security, which I think is unwise,” he said.
“We don’t believe prosecutions are going to be jeopardized because of this program,” Mr. Gonzales responded.
In another exchange, Sen. Joseph R. Biden Jr., Delaware Democrat, asked Mr. Gonzales to “personally … assure us that no one is being eavesdropped upon in the United States other than someone who has a communication that is emanating from foreign soil by a suspected terrorist.”
Mr. Gonzales said he “can’t give you absolute assurance” that no abuses had occurred, although he added that “we have a number of safeguards in place” and that those who decide “whether surveillance should occur are people who are experts with regard to al Qaeda.”
At the heart of the issue is whether Congress has the authority to limit the president’s ability to conduct warrantless surveillance in an effort to collect foreign intelligence.
The White House and many Republicans on Capitol Hill say that the president’s “inherent authority” to do so derives directly from the Constitution, and therefore, cannot be curbed by Congress without amending the Constitution. That authority was amplified, they say, by Congress’ resolution after the September 11 attacks authorizing the president to use “all necessary and appropriate force” to track down terrorists.
It’s the same argument used by Clinton Deputy Attorney General Jamie S. Gorelick in 1994 testimony before Congress.
“The Department of Justice believes — and the case law supports — that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,” she said, noting that the authority pertains also to electronic surveillance such as wiretaps.
More recently, the FISA court wrote in a declassified opinion that the court has long held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.”
In the 2002 opinion about the constitutionality of FISA and the USA Patriot Act, the court wrote, “We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president’s constitutional power.”
Mr. Gonzales will appear at a closed hearing Thursday before the Senate Select Committee on Intelligence to discuss the program further.