GOP senators add heat on spying
Specter urges AG to get court review
WASHINGTON -- Four Republican senators yesterday joined Democrats in challenging Attorney General Alberto Gonzales's insistence that President Bush broke no law when he authorized the military to spy on Americans' international phone calls and e-mails in a contentious daylong hearing by the Senate Judiciary Committee.
Committee chairman Arlen Specter, Republican of Pennsylvania, vowed to hold further sessions in coming weeks, saying that the committee could call Gonzales back for more questioning and is seeking to hear from former attorney general John Ashcroft, who reportedly had concerns about the legality of the spying program.
Specter also pressed Gonzales to allow a special national security court to review the administration's argument that Bush's wartime powers give him the authority to spy on Americans.
''You think you're right," Specter said. ''But there are a lot of people who think you're wrong. As a matter of public confidence, why not take it to the . . . court? What do you have to lose if you're right?"
Gonzales demurred, saying only that the administration is always looking at ways it can work with the national security court to be ''more efficient and more effective in fighting the war on terror." Separately, White House spokesman Scott McClellan yesterday declined to respond to Specter's request during his daily press briefing.
Shortly after the terrorist attacks of Sept. 11, 2001, Bush secretly authorized the military to wiretap Americans' international phone calls and e-mails without warrants, as are required under a 1978 law. The administration contends Bush had the authority to bypass the law under wartime powers granted by the Constitution and reinforced when Congress approved the use of force against the terrorists.
Throughout the hearing yesterday, Democrats insisted Bush had overestimated his powers, and Republicans Specter, Lindsey Graham of South Carolina, Mike DeWine of Ohio, and Sam Brownback of Kansas all questioned why Gonzales was unwilling to ask Congress to change the 1978 law to explicitly allow the spying program, thereby erasing any doubts about its legality.
Gonzales forcefully repeated the administration's defense of its wartime powers, and expressed a willingness to listen to the ideas of Congress but otherwise refused to acknowledge that any change to the 1978 law was necessary.
Senator Dianne Feinstein, Democrat of California, responded that Gonzales was advancing a ''radical legal theory" that means ''the president's power to defend the nation is unchecked by law."
Feinstein also asked if the president had used these powers to bypass other laws.
Replied Gonzales: ''Senator, the president has not authorized any conduct, that I'm aware of, that is in contravention of law."
Several Republicans on the committee defended the Bush administration's right to order the wiretaps without seeking warrants. Republicans John Cornyn of Texas, Charles Grassley of Iowa, Orrin Hatch of Utah, Jon Kyl of Arizona, and Jeff Sessions of Alabama all argued that Bush had the flexibility to conduct the war on terror as he saw fit.
''It seems to me a little humility is called for by the members of this committee, especially before we accuse the president of committing a crime," said Kyl.
But other Republicans were more skeptical.
Specter rejected Bush's argument that Congress had effectively authorized Bush to spy on Americans without warrants when it gave him broad authority to use force against the perpetrators of the 2001 terrorist attacks. He said his fellow senators had been ''shocked" by that contention and that the administration's legal position ''just defies logic and plain English."
Graham said the administration was putting soldiers and intelligence officers at risk of prosecution by asking them to follow orders that violate the law. He said Congress would be much less willing to give presidents the authorization to use force in future crises because of the administration's expansive view of the powers the authorization conveyed.
Brownback argued that to sustain public support for what could be a decadeslong war on terrorism, the administration should work with Congress to adjust the warrant law's procedures rather than rely on the broader wartime powers as a way to ignore the law.
And DeWine told Gonzales that it would be better for the country if Bush took care of the ''legal issues" by asking Congress to amend the wiretapping law.
''Legal scholars, Mr. Attorney General, can and certainly are debating this issue," DeWine said. ''But what is not debatable is . . . the president and the American people would be stronger . . . if he did come to Congress for such specific statutory authorization."
Democrats echoed those themes, but were more harsh in their rhetoric. Senator Patrick Leahy of Vermont, the committee's ranking Democrat, claimed to speak for ''every single member of Congress no matter what their party or their ideology" in offering a message for Gonzales to take back to Bush.
''Under our Constitution . . . we make the laws," Leahy said. ''If you believe you need new laws then come and tell us. If Congress agrees, we'll amend the law. If you do not even attempt to persuade Congress to amend the law, then you're required to follow the law as it's written. That is as true of the president as it's true of me and you and every American. That's the rule of law."
Several Democrats also pressed the attorney general about whether there was any limit to what the administration believed Bush could do under his wartime powers.
''How far will this administration go under the theory you have put forth today to ignore or circumvent laws?" asked Senator Richard Durbin, Democrat of Illinois.
Each time, Gonzales refused to define the hypothetical limits of Bush's wartime powers, saying only that ''whatever the limits of the president's [wartime power] . . . it clearly includes electronic surveillance of the enemy."
The hearing went on all day, with Gonzales as the only witness. Shortly before gaveling the hearing closed around 6 p.m., Specter offered his harshest words yet about the potential illegality of the spying program, vowing that ''we're going to do a lot more" scrutinizing of it.
Committee aides said there may be as many as three more hearings, likely later in February. Possible witnesses include Gonzales again, law professors and other legal specialists, and other current and former administration officials.
Earlier in the day, Democrats also contended that both Bush and Gonzales had lied about the warrantless surveillance before the program's existence was disclosed by the New York Times late last year.
In April 2004, Bush told an audience in Buffalo that ''any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
Gonzales defended Bush's statement, saying the president had been speaking about a specific kind of wiretap allowed by the Patriot Act, not wiretaps in general. Democrats objected to his characterization of Bush's comments, complaining that Specter did not allow them to show a video clip of Bush's speech.
Democrats also pointed to testimony Gonzales made under oath during his January 2005 confirmation hearing. At the time, Gonzales told Senator Russell Feingold, Democrat of Wisconsin, that ''it's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."
Yesterday, Feingold confronted Gonzales over the statement, saying: ''Frankly, Mr. Attorney General, anybody that reads [your testimony] basically realizes you were misleading this committee."
But Gonzales argued that his prior testimony was truthful because, under his theory, the spying program is legal.
The Democrats' belief that Gonzales misled them a year ago prompted some senators to object when Specter announced that he would not ask the attorney general to testify under oath. The committee bickered for 10 minutes before voting 10-8, along party lines, not to place Gonzales under oath.
Specter said Gonzales had been willing to testify under oath, but that such a move was not necessary. 