At a U.S. Department of Justice oversight hearing scheduled before the government announcement on Wednesday, Senate Judiciary Chairman Patrick Leahy (D-Vt.) and ranking Republican Arlen Specter said they were pleased to hear that future activities associated with a controversial National Security Agency operation known as the Terrorist Surveillance Program by judges on the secret Foreign Intelligence Surveillance Court.
But many critical questions about the scope and content of the court orders remain unanswered, committee members said.
"To ensure the balance necessary to achieve both security and liberty for our nation, the president must also fully inform Congress and the American people about the contours of the Foreign Intelligence Surveillance Court order authorizing this surveillance program and of the program itself," Leahy said.
Few, however, probed for those details at Thursday's hearing, where questioning spanned everything from the Iraq war to violent crime statistics to online child exploitation. Aside from Specter, no Republicans asked questions about the surveillance activities, and some Democrats also focused their inquiries elsewhere.
Although Specter said he was concerned about what shape the court orders took, only one senator present directly posed that question. Sen. Chuck Schumer (D-N.Y.) grilled the attorney general on whether the orders described in his Wednesday letter (PDF) amounted to a blanket warrant for the entire eavesdropping program or were tailored to particular targets. Even Intelligence Committee members who had received closed-door briefings didn't seem to have a good feel for that information, he said.
"If it's a very broad-brush approval--and again, because it's secret, we have no way of knowing--it doesn't do much good," Schumer said.
Gonzales said he could only reveal that the orders "meet the legal requirements" under the Foreign Intelligence Surveillance Act (FISA), a 1978 law that was intended to govern eavesdropping on suspects outside the United States.
Perhaps others were hoping the court itself would help shed light on its activities. Specter and Leahy highlighted their joint request on Wednesday to presiding FISA court judge Colleen Kollar-Kotelly for copies of the orders, which are typically kept confidential. According to Gonzales' letter, an unnamed FISA court judge on January 10 issued orders that authorized government wiretapping of communications when at least one end is outside the United States and one of the communicants is likely to be a member or agent of al-Qaida or associated terrorist groups.
Whether that information will be released to Congress--much less to the public--remains uncertain. In a letter dated January 17 and distributed to reporters Thursday, Kollar-Kotelly said she had no objection to furnishing the documents to the committee but because classified information is involved, she would have to refer their request to the Justice Department.
"If the executive and legislative branches reach agreement for access to this material," she wrote, "the court will, of course, cooperate with the agreement."
Pressed by Leahy on whether he would object to the court orders being shared with Congress, Gonzales first said he'd have to take it up with his "principals."
"Are you saying that you might object to the court giving us decisions that you publicly announced?" Leahy asked. "Are we a little Alice in Wonderland here?"
"I would say it's not my decision to make," Gonzales replied. He added that he couldn't remember exactly what was in the orders but that they undoubtedly include "operational details" that would need to be kept under wraps.
Schumer, Specter and Sen. Russ Feingold (D-Wis.) each questioned why the Bush administration hadn't approached the court sooner if it had truly begun exploring that option in spring 2005, as it said in its Wednesday letter.
"This is a very complicated application," Gonzales replied. "In many ways it's innovative in terms of the orders granted by the judge. It's not the kind of thing you just pull off the shelf. We worked on it a long time."