[Mb-civic] Varied Rationales Muddle Issue of NSA Eavesdropping - Washington Post

[William Swiggard]

Varied Rationales Muddle Issue of NSA Eavesdropping

By Dan Eggen and Walter Pincus
Washington Post Staff Writers
Friday, January 27, 2006; A05

President Bush said yesterday that he didn't seek congressional approval 
for a warrantless domestic eavesdropping program for one simple reason: 
He didn't need it.

"We believe there's a constitutional power granted to presidents as well 
as, this case, a statutory power," Bush said. "And I'm intending to use 
that power."

It is one of several explanations on the topic from Bush and his aides, 
who have provided at least two separate rationales for why they did not 
ask for statutory authority for the program. Attorney General Alberto R. 
Gonzales said the administration had considered seeking legislation but 
determined it would be impossible to get, adding later in the same news 
conference that authorities did not want to expose the program's 
existence. White House spokesman Scott McClellan has echoed the latter 
point, saying the administration feared that details of the classified 
program would be exposed publicly.

The subject is one of several elements in the NSA spying debate that 
have been clouded by apparent contradictions and mixed messages from the 
government since the program was revealed last month. The confusion has 
cleared up little in recent days, as the White House has embarked on a 
multi-pronged campaign to defend the legality of the controversial program.

Gonzales and other officials, for example, have repeatedly said that the 
Foreign Intelligence Surveillance Act (FISA), which governs secret 
surveillance in the United States, is too cumbersome to be applied to 
the NSA eavesdropping program. Yet the Justice Department raised 
concerns about a 2002 bill to loosen FISA requirements.

Before the program's existence was revealed, several administration 
officials also emphasized in testimony and public statements that the 
NSA was prohibited from engaging in domestic surveillance -- even as the 
agency was clearly doing so under the authority of Bush's secret order 
that established the program.

Many Democratic lawmakers and legal experts have seized on these and 
other issues in recent days to argue that the Bush administration has 
been misleading in its explanations of the NSA program.

Sen. Edward M. Kennedy (D-Mass.) said that the "after-the-fact spin 
we're hearing now is worthless." Senate Minority Leader Harry M. Reid 
(D-Nev.) issued a statement yesterday criticizing the administration for 
claiming that Congress had been fully briefed on the NSA program and for 
opposing the 2002 measure to loosen FISA standards.

The latter issue attracted particular criticism yesterday, as lawmakers 
and national security experts opposed to the program cast doubts on the 
administration's current legal rationale.

An amendment to FISA proposed by Sen. Mike DeWine (R-Ohio) would have 
lowered the standard to be met for authorizing surveillance of non-U.S. 
citizens, from "probable cause" to "reasonable suspicion" that the 
target was an agent of a terrorist group. The Justice Department did not 
offer support for DeWine's amendment because of "significant legal and 
practical issues," according to department statements.

Confusion over the issue deepened further yesterday after officials 
discovered two versions of a Justice statement on the legislation. One, 
which was posted on the Federation of American Scientists Web site and 
quoted in media reports, noted possible constitutional concerns. The 
other, held by the Senate intelligence committee, did not include that 
issue. Officials could not explain the disparity.

A Justice spokeswoman said this week that the previous opinion did not 
conflict with current legal justifications for the NSA spying because 
"probable cause" required under FISA is "essentially the same" as the 
standard used in the NSA program: "a reasonable basis to believe" that a 
target is linked to al Qaeda or an affiliate.

But Timothy H. Edgar, a national security lawyer at the American Civil 
Liberties Union, also said the NSA program clearly operates under a 
lower legal standard allowed only in limited circumstances, such as when 
police to frisk suspicious people on the street.

"That's never been considered acceptable for searching someone or 
listening to their telephone," Edgar said.

Bush and his top aides have repeatedly stressed that "Congress" had been 
briefed on the program over the past four years, but have often 
neglected to mention that the briefings were limited to the "Gang of 
Eight": the speaker and minority leader of the House; the majority and 
minority leaders of the Senate; and the chairmen and ranking Democrats 
on the two intelligence committees. And they were barred from taking 
notes or discussing what they heard with other lawmakers or their staffs.

Sen. John D. "Jay" Rockefeller IV (D-W.Va.), who as vice chairman of the 
Senate intelligence panel was briefed in 2003, took the unusual step of 
sending Vice President Cheney a classified letter voicing his concerns 
about the program and the lack of oversight on how it was being carried 
out. Several other prominent Democrats have also questioned the 
program's legality since it was made public, including Reid, House 
Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jane Harman (D-Calif.), 
ranking minority member of the House intelligence committee.

Yet Dan Bartlett, counselor to Bush and White House communications 
director, said Monday that the lawmakers who had been briefed "believed 
we are doing the right thing" and that Democratic leaders "briefed on 
these programs would be screaming from the mountaintops" if they thought 
the program was illegally eavesdropping on Americans.

Some critics, including a group of relatives of victims of the Sept. 11, 
2001, attacks, have also focused on previous statements by Gen. Michael 
V. Hayden -- the deputy intelligence director who formerly headed the 
NSA -- that now appear to be, at best, incomplete.

For example, Hayden and other NSA staff members told the House-Senate 
inquiry into the attacks that "they do not want to be perceived as 
focusing NSA capabilities against U.S. persons in the United States," 
said the panel's report. "The Director and his staff were unanimous that 
lessons NSA learned as a result of Congressional investigations during 
the 1970's should not be forgotten."

Hayden suggested similar limitations in an appearance before the House 
intelligence committee in October 2002, telling Porter J. Goss, then the 
committee chairman, that the NSA "would have no authorities" to pursue 
Osama bin Laden if he entered the United States. The NSA program was at 
least a year old by that time, and Goss -- now the CIA director -- was 
one of the few members of Congress briefed on it. Experts also say 
Hayden was wrong to suggest that bin Laden would enjoy the same legal 
protections as U.S. citizens or residents.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/26/AR2006012601990.html?nav=hcmodule
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