According to the documents, Gonzales plans to assert in his opening statement that seeking approval for the wiretaps from the Foreign Intelligence Surveillance Act (FISA) court could result in delays that "may make the difference between success and failure in preventing the next attack." He will compare the program to telegraph wiretapping during the Civil War. In accompanying testimony, the Attorney General plans to leave open the possibility that President Bush will ask the court to give blanket approval to the program, a step that some lawmakers and even some Administration officials contend would put it on more solid legal footing.
In pointed written questions posed in advance by Judiciary Committee Chairman Arlen Specter (R-Pa.), Gonzales was asked whether he would "consider seeking approval from the FISA Court at this time for the ongoing surveillance program at issue." According to 11 pages of answers to the 15 questions, Gonzales will reply, "We use FISA where we can, and we always consider all of our legal options."
Specter has said that warrantless surveillance of U.S. citizens is "wrong," but Senate aides say he has concluded Bush acted in good faith. Specter's hearing, which is scheduled to last most of Monday, will focus on presidential powers in wartime and will examine whether Bush took legal shortcuts in implementing the program, which allows the National Security Agency to monitor communications involving suspected al-Qaeda members if one party to the conversation is inside the U.S. The program began soon after the Sept. 11 attacks and was exposed by the New York Times in December. Since then, lawmakers have complained that the administration's legal arguments are shaky, and have contended that briefings for the House and Senate intelligence committees were inadequate or misleading.
The Attorney General plans to tell Specter that the program is more limited than has been portrayed in some news reports, which have suggested that it could impinge on the privacy of innocent Americans through vast data mining of conversations and e-mails carried by telecommunication companies' trunk lines. "Contrary to the speculation reflected in some media reporting," Gonzales writes, "the terrorist surveillance program is not a dragnet that sucks in all conversations and uses computer searches to pick out calls of interest. No communications are intercepted unless first it is determined that one end of the call is outside of the country and professional intelligence experts have probable cause (that is, ‘reasonable grounds to believe') that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization." No telecommunications executives are scheduled to testify Monday. Gonzales says President Bush reviews and reauthorizes the program "approximately every 45 days."
The hearing is likely to delve into whether the White House considered seeking congressional permission for the program and was rebuffed. That could call into question the Administration argument that the President has the authority under his constitutional powers as commander in chief and under a congressional resolution authorizing military force against terrorists responsible for the 9/11 attacks. Tom Daschle, a South Dakota Democrat who was Senate Majority Leader at the time, wrote in the Washington Post in December that White House lawyers had used negotiations over the resolution to seek broader presidential authority within the U.S. and not just overseas. "I refused," Daschle wrote.
Some administration statements have suggested Bush went ahead with the program after concluding that Congress would reject legislation specifically authorizing it. However, Gonzales says in his answers to Specter that members of Congress "advised the Administration that more specific legislation could not be enacted without likely compromising the terrorist surveillance program by disclosing program details and operational limitations and capabilities to our enemies." Gonzales says that critics "have misinterpreted or misconstrued" a statement he made in the White House briefing room on Dec. 19, just ahead of a Presidential news conference in the East Room. The Attorney General had said, then, that the Administration had discussions with certain lawmakers in the weeks after the Sept. 11 attacks "about whether or not we could get an amendment to FISA."
"We were advised that that was not likely to be that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program," Gonzales had said in December. "So a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."
Specter asked Gonzales if the program allowed monitoring of foreign calls if they were routed through switches physically located on U.S. soil. "None of the intercepts at issue constitutes a violation of law or regulation," Gonzales replies. "I cannot give a more complete answer here, because I cannot go into operational details." The Attorney General's testimony reiterates the basic case the Justice Department made Jan. 19 in a 42-page statement of "legal authorities" for the program, and in a five-page letter to the intelligence committees in December.
A Congressional Research Service analysis said in January that the executive branch's briefings for Congress "would appear to be inconsistent with the law," since they were limited only to eight top leaders. But Senate Intelligence Committee Chairman Pat Roberts (R-Kan.) supported the President on Friday in a letter to Democratic National Committee Chairman Howard Dean, who had said in a video news release in December that the program was reminiscent of "the dark days of President Nixon and Vice President Spiro Agnew."
Rep. Jane Harman (Calif.), the top Democrat on the House Intelligence Committee, said in a letter to President Bush on Wednesday that the "activities of the NSA program can and should be accomplished within the law, not by circumventing it." Harman, one of the few lawmakers who has been briefed on the program, wrote that she is "not clear why FISA as presently drafted cannot cover the entire program."
Gonzales contends in his 10-page opening statement for Monday's hearing that fighting al-Qaeda "is, in fundamental respects, a war of information," and that asking the FISA court for permission for each intercept "would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system." Lawmakers in both parties have asked why the Administration could not use a FISA provision allowing petitions to the court after monitoring has begun. Gonzales says there "is a serious misconception" about those provisions, and that the administration could not begin surveillance "without knowing that we meet FISA's normal requirements." He said a FISA application "involves a substantial process" that "consumes valuable resources and results in significant delay," when what is needed is "the maximum in speed and agility."
The opening statement does not address criticism by Sen. Russ Feingold (D-Wis.), a possible Presidential candidate, that Gonzales misled senators during his confirmation hearing in January 2005. During the hearing, Feingold asked Gonzales whether, in his opinion, the President has "the authority acting as commander in chief to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales, whose answer addressed administration policy on torture, replied that the senator was discussing "a hypothetical situation."