Bush allies defend NSA surveillance

As lawsuits appear and hearings are set, President Bush and allies go on the offensive over the domestic surveillance program.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
WASHINGTON--President Bush and his closest allies are stepping up their defense of a domestic surveillance program in the face of congressional criticism, multiple lawsuits and a Senate hearing planned for next month.

In a continuation of a full-court press that began a day earlier, Attorney General Alberto Gonzales on Tuesday told students at Georgetown University that a wartime president has the lawful authority to eavesdrop on Americans' telephone calls and e-mail messages without court approval.

"The terrorist surveillance program is both necessary and lawful," Gonzales said. "Accordingly, the president has done with this lawful authority the only responsible thing: use it."

Gonzales' defense of the program, which uses the National Security Agency to conduct warrantless wiretaps of conversations, comes as scrutiny of the traditionally publicity-shy agency is growing.

Rep. John Conyers, a top Democrat from Michigan, on Friday asked (click here for PDF) companies including Google, Yahoo, EarthLink, Verizon Communications and T-Mobile whether they have given the government access to their networks when not authorized by a court order. And Sen. Arlen Specter, a Pennsylvania Republican, has scheduled a Judiciary committee hearing for Feb. 6. Specter has indicated he believes the surveillance program to be illegal.

Bush himself defended the program during a speech at Kansas State University on Monday. "Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies," he said. "Predecessors of mine have used that same constitutional authority."

Michael Hayden, a former NSA director who is now a top intelligence official, went even further. In a speech in Washington on Monday (click here for PDF), Hayden said that "had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al-Qaida operatives in the United States, and we would have identified them as such."

Attorney General Gonzales echoed that argument, saying the threat of al-Qaida was real and reminded the audience that a videotape from Osama bin Laden surfaced last week. He emphasized that press accounts describing the program's scope have been, with little exception, "misinformed, confusing or wrong." But he refused to reveal further details about the program, saying it remains "highly classified."

At one point during Gonzales' speech to about 100 students, dozens stood up and turned their backs to the attorney general.

If nowhere else, the authorization for the exercise of presidential powers can be found in a congressional resolution passed just days after Sept. 11, Gonzales said. That measure, known as the "Authorization for Use of Military Force," allows the president to "use all necessary and appropriate force" against suspected terrorists and their allies.

That argument may soon be tested in court. The American Civil Liberties Union filed a lawsuit last week claiming that the NSA program violates both the U.S. Constitution's Bill of Rights and a federal law saying that a court order is generally necessary to spy on Americans. The group is asking for a preliminary injunction that would halt the surveillance program.

A separate lawsuit (click here for PDF) was filed last week by the Electronic Privacy Information Center. That suit asks a federal judge in Washington, D.C., to force the Bush administration to release information about the NSA spying program.

EPIC had filed a Freedom of Information Act request, but the Justice Department said it could not comply with it by the legal deadline. The request asks for an audit of the NSA's domestic surveillance activities, legal opinions created by Bush administration attorneys justifying the program, and what kind of guidance or "checklist" is used to determine who to monitor.

The Bush administration is out of line in its reading of the law, said David Cole, a Georgetown law professor specializing in constitutional law who spoke on a four-member panel discussion that took place after Gonzales' speech.

"It's a crime to conduct electronic surveillance without authorization in two places in the statute," Cole said, referring to the Foreign Intelligence Surveillance Act (FISA). He said that under FISA, the president may conduct wiretapping without a warrant for 15 days after the declaration of war but must seek authorization for activities continuing beyond that period.

Given that context, "how can it be that authorization to use military force somehow gives him four years of unchecked power?" Cole asked.

He also rejected the administration's claims that the Supreme Court's decision in the detainee case offered justification for its wiretapping actions. A court likely would not have drawn the same conclusion had there been a law such as FISA that set a 15-day limit for detaining American citizens suspected of being enemy combatants, he said.