In Defense Of Eavesdropping

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U.S. Attorney General Gonzales, on Monday, during a Senate Judiciary Committee hearing on domestic surveillance

Attorney General Alberto Gonzales sipped water, read from bread-box-sized law books and generally kept his cool through a barrage of questions Monday as Senators from both parties tried to corner him on the limits of presidential wartime powers. It was the first real public debate in Congress since 9/11 about presidential authority in times of war, and so while the hearing was ostensibly about the President's secret warrantless wiretapping program, the most exercised debate was about how far the Commander in Chief's powers could be taken without judicial oversight.

"Mr. Attorney General," Democratic Senator Patrick Leahy of Vermont said at one point, "I'm getting the impression this administration picks and chooses what it's subject to." Senators asked directly if opening first-class mail or listening to calls beginning and ending inside the U.S. without notifying a court could be justified under the same argument. Gonzales wouldn't answer, saying he couldn't talk about operational details. Senators repeatedly pressed him on who was keeping the National Security Agency (NSA) program in check. How could Americans be assured that the government was only listening to the phone calls of known terrorists?

The NSA performs its own oversight, said Gonzales. The program, he argued, is run by professional intelligence officers, and the NSA Inspector General reviews the program to be sure the agency is not listening in on the conversations of unsuspecting citizens. Also, he added, the program itself, which monitors only phone calls where one end originates outside the U.S., is renewed every 45 days on the condition, said Gonzales, that "al Qaeda continues to pose a threat."

The NSA wiretaps were performed without obtaining the warrants beforehand required by the law that governs eavesdropping on foreign agents, in part, because the process is "cumbersome and burdensome," said Gonzales. Convinced that it wasn't necessary, the Bush Administration did not ask Congress to streamline the procedures to perform these wiretaps. Senators cited five recent examples when changes in the Foreign Intelligence Surveillance Act (FISA) were passed at the request of the White House. When asked, Gonzales argued, it wasn't necessary because the President's constitutionally granted powers, as well as the specific wartime authority granted after 9/11, allow the President to authorize these types of wiretaps, without a change of existing law. The program "is an early-warning system for the 21st century," Gonzales said.

Unlike Republican colleagues Orrin Hatch of Utah or John Cornyn of Texas, Chairman Arlen Specter of Pennsylvania didn't easily accept that rationale. He expressed his skepticism early on, telling Gonzales that federal law has a "forceful and blanket prohibition against any electronic surveillance without a court order"; he even suggested that the program's legality should be reviewed by a special court. Specter did come to Gonzales' aid early on, when Democrats on the committee ate up twenty minutes with a doomed procedural vote to force Gonzales to testify under oath, a gesture Specter thought was unnecessary.

Kevin Griffey, a 27-year-old mechanical engineer from San Diego, Calif., interrupted the proceedings midway through the day by jumping up and calling Gonzales, at the top of his lungs, a "lazy fascist." Griffey, who was subsequently escorted from the hearing, had attended a protest at the White House on Saturday and wanted to attend the hearing because he felt Gonzales has been misinterpreting the law. "It might be the only opportunity to talk to the Administration," he told TIME after he was taken out of the building. "He might hear what I had to say."

That is doubtful. But Gonzales heard plenty of what the Senators had to say. When Senator Russ Feingold, Democrat of Wisconsin, suggested the former White House Counsel had been less than truthful during his Attorney General confirmation hearings a year ago for saying that a question about warrantless wiretapping was "hypothetical," Gonzales remained firm; the question was indeed hypothetical, he retorted, because Feingold had asked him whether he thought the President could authorize eavesdropping "in violation of the law."

Questions about the operational specifics of the NSA program bounced off Gonzales all day—"what happens to the data?", "how long is it retained?"—none of which Gonzales would answer. "An open discussion of the operational details would put the lives of Americans at risk," he claimed.

Sitting in the front row of the spectator's gallery, Richard Flesher, a retired social studies teacher from Hinsdale, Ill., had the same questions. After a recent trip to the Middle East, Flesher was curious if any of his phone calls or emails to the region are now in the NSA's database and sent a Freedom of Information Act (FOIA) request to find out. The NSA responded that they could neither confirm nor deny that they intercepted copies of his communications. He's written an appeal and is still waiting for an answer. "It's not about getting money," said Flesher, leaning back in his gallery chair during the hearing, "it's about knowing. Yes, you have the information or no you don't." After spending the day with Gonzales, Senators looking for some detailed answers about the controversial wiretapping program had to be just as unsatisfied.