Permission to Eavesdrop?

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U.S. Attorney General Alberto Gonzales speaks about domestic wiretapping policies at Georgetown University

Even as the White House launches a media blitz to portray its controversial wiretapping program as a perfectly legal weapon in the war on terror, administration officials have begun dropping subtle hints—without explicitly saying so—that President Bush could go to Congress to seek more specific authority to listen in on U.S. citizens who are suspected of entanglement with terrorists. Attorney General Alberto Gonzales added to such speculation Tuesday by asserting during a series of television interviews that the law setting up an apparatus requiring warrants for such eavesdropping—the Foreign Intelligence Surveillance Act, or FISA—might be outmoded. "I think we all realize that since 1978, when FISA was passed, there have been tremendous changes in technology," he said on CBS's "The Early Show." "We are engaged in a debate now, a conversation with Congress about FISA and about these authorities."

During a speech a few hours later at Georgetown University Law Center, Gonzales made another reference to the possible need to update the law, pointing to the authorization Congress gave Bush to pursue terrorists after the Sept. 11 attacks as part of the justification for the current program. "It is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act in times of armed conflict to protect the United States," said Gonzales, who also said Bush was simply following in the footsteps of such presidents as Washington and FDR who had also used military surveillance without warrants. "FISA, by its own terms, was not intended to be the last word on these critical issues."

No such move is imminent, a top aide stressed. But administration lawyers are said to be debating whether the President would be better off putting the monitoring on more solid footing, or whether seeking additional latitude would amount to admitting the government had not been following the law. The most likely route would be an amendment to FISA, sources said. Lawyers following the controversy perked up their ears when Gonzales said at Georgetown that the government could begin monitoring based on whether there was a "reasonable" basis to believe the subjects were linked to terrorism. Some lawyers contend that is lower than the "probable cause" standard established by FISA. Gonzales said that the "terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al-Qaeda or affiliated terrorist organizations." But he added: "'Reasonable basis to believe' is essentially the same as the traditional Fourth Amendment probable cause standard."

White House press secretary Scott McClellan was asked during both of his briefings Tuesday whether Bush might seek additional wiretapping authority from Congress for what the President has rechristened the "terrorist surveillance program", and he did not answer directly. Asked whether Bush would seek "more legal permission from Congress to spy on Americans without a warrant," McClellan—using a phrase that the administration is now emphasizing—called it "a limited, targeted program," and said that the White House realizes the need to give a "clearer picture of where things are with the American people" leading up to Congressional hearings that begin Feb. 6. "I reject your characterization to suggest it's domestic spying," he added. "That's like saying someone making a phone call from inside the United States to another country is a domestic call. It is billed the international rate."

Whether the White House does gain new congressional authority, indications are growing that the controversy could be much more than a political or public relations problem for the administration. Late last week, according to the Albany Times-Union, lawyers for an Albany man accused of trying to sell missile launchers to terrorists asked a federal district court to dismiss the charges because evidence leading to his being targeted in an FBI sting operation was allegedly obtained by warrantless wiretapping. Gonzales was asked on CNN about terror suspects and wiretapping evidence. "I can't speak to specific cases," he said. "What I can say is we believe the program is lawful." But since not everyone sees it that way, the President might decide to seek a little extra assurance—and insurance—from Congress.