By IPS Correspondents
NEW YORK, Feb 7 2006 (IPS)

If people in the United States expected to hear details of their government’s top-secret “terrorist surveillance programme” from Attorney-General Alberto Gonzales in his testimony Monday before the Senate Judiciary Committee, they were likely disappointed.

Gonzales repeatedly refused to discuss any of the “operational” aspects of the programme, run by the National Security Agency (NSA), part of the Department of Defence. Since 2001, the NSA has reportedly been conducting warrantless electronic surveillance of telephone calls and emails exchanges between alleged terrorists and their supporters in the United States and abroad.

Instead of information about the programme, what attendees at the hearing and television viewers got was a lesson in Constitutional Law 101 and heated rhetoric about presidential versus congressional power.

Committee Democrats joined a few Republicans in calling the programme illegal because a 1978 law known as the Foreign Surveillance Act (FISA) established a super-secret court and designated it as the exclusive body authorised to issue warrants for wiretaps after a showing of probable cause by the DOJ.

A FISA court judge resigned in protest shortly after the NSA programme was disclosed publicly.

Congress passed the FISA law in the wake of the Richard Nixon administration’s widespread snooping on anti-Vietnam protestors and dozens of people who were on Nixon’s “enemies list” during his term from 1969-1974.

He contended that Congress authorised the eavesdropping programme when it approved a resolution on the use of force against the perpetrators of the Sep. 11, 2001 terrorist attacks. He also asserted that even if the use-of-force claim should prove incorrect, the president had the “inherent” power to conduct surveillance under the commander-in-chief authority contained in the Constitution.

Some Republicans on the committee joined Democrats in expressing doubts about Gonzales’s assertions of presidential authority to order the secret surveillance programme.

The committee chairman, Sen. Arlen Specter, Republican of Pennsylvania, told Gonzales he was “sceptical” of these claims.

Sen. Lindsey O. Graham, a South Carolina Republican, also challenged Gonzales’ assertions. Graham said it was “very dangerous” to make such claims, which he argued could make it more difficult for presidents in the future to obtain use-of-force resolutions from Congress.

The committee’s top Democrat, Sen. Patrick J. Leahy of Vermont, told Gonzales, “We all agree that if you have al Qaeda terrorists calling, we should be wiretapping them.”

However, he added, “Instead of doing what the president has the authority to do legally, he decided to do it illegally without safeguards.”

Noting that the FISA law has been amended five times since the Sep. 11 attacks “to give it more flexibility”, Leahy and others asked Gonzales why the administration had not asked for additional amendments if they thought the law was inadequate.

Gonzales cautioned against dealing with current threats through legislation; he said this could inhibit the president’s ability to protect the country and result in leaks of confidential information.

Obtaining warrants under FISA can be “cumbersome and burdensome”, Gonzales said, outlining the paperwork and multiple permissions the law requires. “All of these steps take time. Al Qaeda, however, does not wait,” he said.

Leahy and other Democratic senators disputed Gonzales’s assertions.

Leahy said the September 2001 congressional authorisation to use military force “did not give the president the authority to go around the FISA law to wiretap Americans illegally” and “did not authorise domestic surveillance of citizens”.

Bush never sought additional legal authority from Congress to conduct “the type of domestic surveillance in which NSA has been secretly engaged in”, and never told Congress “that FISA was inadequate, outmoded or irrelevant”, Leahy complained.

“You never did that until the press caught you violating the statute with this secret wiretapping of Americans without warrants,” he said.

The NSA’s domestic eavesdropping programme was exposed in December by The New York Times. Its coverage was based largely on leaked information, and the Justice Department is currently conducting an investigation to identify the sources of the leaks.

Gonzales said Bush was convinced he had the necessary authority. Another concern, he said, was that “the legislative process may result in attempted restrictions upon the president’s inherent constitutional authority and he may not be able to protect the country in the way that he believes he has the authority to do under the Constitution”.

Gonzales also said “it is pretty difficult to keep certain information confidential” in the legislative process. “And I think I’m concerned that that process will inform our enemies about what we’re doing here and how we’re doing it.”

California Democrat Sen. Dianne Feinstein charged that Gonzales had advanced a radical legal theory”, and asked whether Bush has ever invoked he authority he claims for any programme other than the NSA surveillance programme. Gonzales refused to answer.

Sen. Joseph R. Biden Jr., a Democrat from Delaware, asked Gonzales whether he could assure the panel that “no one is being eavesdropped upon in the United States” other than people communicating with a suspected terrorist abroad.

Gonzales replied, “I can’t give you absolutely assurance of the kind that you’ve asked for,” adding that he could not discuss such “operational details” of the programme.

In response to other questions, Gonzales also declined to say whether the authority the president claims also applies to eavesdropping without a warrant on communications entirely within the United States. Nor would he say whether the administration’s interpretation of its authority would allow the government to open the mail of U.S. citizens.

The NSA programme has drawn a sharp response from legal scholars and civil liberties organisations.

In a full-page advertisement in the USA Today newspaper, the American Civil Liberties Union (ACLU) called for “a full, open and independent investigation into the illegal programme”. It also filed a lawsuit on behalf of a group of prominent journalists, not-for-profit groups, terrorism experts and community advocates, challenging the constitutionality of the warrantless surveillance operation.

The effectiveness of the NSA programme has also come under scrutiny. Porter Goss, the head of the Central Intelligence Agency, told a Congressional Committee last week that the New York Times’s revelations had damaged the nation’s ability to fight the “global war on terror”.

But agents of the Federal Bureau of Investigation reportedly told The New York Times that the NSA programme has led to large numbers of largely useless leads, each of which had to be followed up.

The Judiciary Committee may hold a second hearing in the near future. Former Attorney-General John Ashcroft, who reportedly had questioned the legal basis of the NSA programme, has been mentioned as a possible witness.

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