U.S. Attorney General Alberto Gonzales was grilled by the Senate Judiciary Committee today over the Bush administration’s abrupt change of direction on warrantless wiretapping of calls and e-mails between Americans and suspected foreign terrorists.
In a letter to the Congressional leaders of the Intelligence and Judiciary Committees yesterday, Gonzales said “any surveillance” would now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, a secret panel authorized by the 1978 Foreign Intelligence Surveillance Act (FISA).
FISA requires the government to seek a warrant from the special court before conducting a search or electronic surveillance related to foreign terrorism or espionage.
Prior to Wednesday, the Bush administration contended that it is entitled to intercept calls and e-mails without a warrant because of the president’s constitutional power as commander-in-chief during times of war.
In his opening remarks to the Senate Judiciary Committee Thursday morning, Gonzales said, “Court orders issued last week by a judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance… subject to the approval of the FISA Court.”
Gonzales added the surveillance is limited to “where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.”
Democrats on the panel wanted to know why it took the Bush administration five years to change its mind on warrantless wiretaps.
Gonzales said the administration “felt we could not do what we needed to do to protect this country” under the limits of FISA in the initial days following the Sept. 11, 2001, terrorist attacks on the United States.
“We did not know if FISA was sufficient until the very moment the judge approved this,” Gonzales said. “We weren’t sure FISA was adequate to do what we had to do.”
Sen. Charles Schumer (D-N.Y.) pushed Gonzales for more details on how the program would work, wanting to know if the new FISA orders for wiretaps are directed at individuals or groups of individuals.
“Is there any intention to do this on an individual basis or is this a broad brush approach?” Schumer asked Gonzales. “If it is very broad, it’s not very much protection of our rights guaranteed under the Constitution.”
Gonzales refused to disclose any details of the new FISA orders, but insisted, “All terrorist surveillance will all be done by orders issued in the FISA court.”
Schumer replied, “I’m telling you I’m not very satisfied with your answers.”
Senate Judiciary Chairman Patrick Leahy (D-Vermont) was also not pleased with Gonzales’ answers. “The law is the law and no one is above the law — not the president, not you,” he told Gonzales.
A firestorm of controversy, criticism and lawsuits over the administration’s wiretap policies erupted after the New York Times revealed in December 2005 that the White House authorized the National Security Agency to conduct warrantless wiretaps among people in the U.S. suspected of terrorist connections.
The Electronic Frontier Foundation (EFF) quickly followed up the story with a class-action lawsuit against AT&T, claiming the carrier violated the law by assisting in the NSA’s controversial program. AT&T, according to the lawsuit, provided federal eavesdroppers access to a database of caller information.
The American Civil Liberties Union (ACLU) also filed a lawsuit on behalf of prominent journalists, scholars, attorneys and organizations that claim the program is disrupting their communications with clients and sources.
In August, U.S. District Judge Anna Diggs Taylor of Detroit ordered the White House to cease all warrantless wiretapping of calls between Americans and suspected foreign terrorists, rejecting Bush’s claim that he had the inherent power to authorize the program. The decision is under appeal.
A senior Department of Justice official told reporters Wednesday the new direction of the White House “will likely have a significant impact one way or the other [on pending litigation]. Obviously, it’s up to the courts in those cases to decide what the significance of the order is. And they’ll have an opportunity to do that.”
As for what happens next, White House press secretary Tony Snow said in a briefing Wednesday, “The [wiretap] program pretty much continues. The Foreign Intelligence Surveillance Court has put together its guidelines and its rules, and those have met administration concerns about speed and agility when it comes to responding to bits of intelligence where you may be able to save American lives.”
Gonzales added Thursday, “This is something we could do to bring the program under a court order. Electronic surveillance during a time of war will continue.”