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Gonzales: NSA may tap 'ordinary' Americans' e-mail

During Senate hearing, attorney general declines to offer reassurances about a secret surveillance program.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
5 min read
WASHINGTON--Agents operating a controversial National Security Agency surveillance program may have inadvertently spied on the e-mails and phone calls of Americans with no ties to terrorists, Attorney General Alberto Gonzales said Monday.

Gonzales stressed that the program is "narrowly focused" and that adequate steps are taken to protect privacy, though he said he was unable to describe such procedures because of the program's classified nature.

Alberto Gonzales
Credit: Anne Broache
Attorney General Alberto Gonzales
fields Senate questions on Monday.

The admissions came as part of the first of what will likely be several public hearings before the U.S. Senate Judiciary Committee. A full slate of Democrats and Republicans rotated 10-minute stints questioning Gonzales, the day's sole witness, about the secret eavesdropping program. A CNET News.com survey published Monday lists which telecommunications companies say they are not cooperating with the NSA.

The Bush administration has said repeatedly that the program, which has transpired without prior court approval since shortly after the Sept. 11 attacks, only monitors communications in which at least one party is located outside the United States and is a member or agent of al-Qaida or groups associated with terrorists.

Meanwhile, it has stuck to a three-pronged defense of the program, which Gonzales outlined repeatedly on Monday: the U.S. Constitution, a Congressional resolution passed shortly after Sept. 11 that authorizes the use of military force against al-Qaida and its allies, and a Supreme Court interpretation of that resolution.

But Gonzales shunned all questions he deemed "operational" matters, such as how many people have been subject to the tapping, how the government goes about cooperating with telecommunications companies and Internet service providers from a legal perspective, and whether additional secret surveillance programs have been authorized by the same logic.

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No warrant required
Attorney General Alberto Gonzales testifies.

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Is NSA spying legal?
Sen. Patrick Leahy
attacks NSA spying.

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Examining wiretaps
Sen. Arlen Specter
quizzes Gonzales.

"Can you assure us that no one is being eavesdropped upon in the United States other than someone who has a communication that is emanating from foreign soil by a suspected terrorist, al-Qaida or otherwise?" Sen. Joseph Biden, a Delaware Democrat, asked at one point early in the daylong hearing.

"I can't give you absolute assurance," Gonzales replied, before adding, "What I can assure the American people is we have a number of safeguards in place so we can say with a high degree of certainty that those procedures are being followed."

Democrats dominated the criticism about the program's lack of court authorization and suspected illegality, but Committee Chairman Arlen Specter, a Pennsylvania Republican, also strongly encouraged the attorney general to consider seeking court review for the entire program. "The concern is that there is a broad sweep which includes people who have no connection with al-Qaida," he said. "What assurances can you give to this committee and, beyond this committee, to millions of Americans who are vitally interested in this issue and following these proceedings?"

Said Gonzales, "The program as operated is a very narrowly tailored program, and we do have a great number of checks in place." He said later in the hearing that he was unable to give "specific information about collected, retained and disseminated" communications, except to say that it is done so "in a way to protect privacy interests of all Americans."

Support for the program appeared to split down party lines. Several Republicans said they generally supported the administration's efforts and understood the importance of the eavesdropping operations. "I suspect few members of Congress would vote to eliminate this program or cut its funding," said Sen. Orrin Hatch of Utah.

The committee's top Democrat, Sen. Patrick Leahy of Vermont, said bluntly that the secret surveillance program is not authorized by a 1978 law called the Foreign Intelligence Surveillance Act (FISA), which he called the "exclusive source of authority for wiretapping for intelligence purposes." "Wiretapping that is not authorized under that statute is a federal crime," he said. "That is what the law says, and that is what the law means."

Leahy chided the attorney general for the administration's lack of consultation with Congress on the legality of the program. "Thank heavens we actually have a press that tells us what you all are doing, because you all are certainly not," he said without disguising any hint of disapproval.

Sen. Dianne Feinstein, a California Democrat, said she, too, was concerned that too few members of Congress had been adequately briefed about the program, a phenomenon that gave her reason to believe "this program is much bigger and much broader than you want anyone else to know," she said.

Sen. Edward Kennedy, a Massachusetts Democrat, argued that by circumventing FISA, the Bush administration could be jeopardizing national security in the long run. If the wiretapping program is illegal, he said, front-line NSA employees could be prosecuted, and evidence gathered through the process could be tossed, meaning that "some of those toughest, cruelest and meanest members of al-Qaida may be able to use illegality in the court system to escape justice."

But even some Republicans who said they supported the program also admitted they believed it would be more effective and better accepted by the public if Congress explored new legislation to give it a formal legal blessing. "Presidents are always stronger in the condition of foreign affairs when Congress is onboard," said Sen. Mike DeWine, an Ohio Republican. He broached the idea of amending FISA so that it would exclude the sort of communications the administration said it has been tapping through the NSA program.

The administration will "listen and consider your ideas," Gonzales said.

Specter said he expected to schedule a second day of hearings to allow senators to ask the attorney general additional questions about the situation. Other members of the committee indicated they hoped to bring in additional witnesses, such as former Attorney General John Ashcroft, for questioning.

The Senate Select Committee on Intelligence is planning a hearing of its own later this week with the attorney general and NSA Director Michael Hayden, DeWine said, but that session will be closed to the public.