Campaign to Justify Spying Intensifies
By Dan Eggen and Walter Pincus
The Washington Post
NSA effort called legal and necessary.
A senior U.S. intelligence official offered a wide-ranging and detailed defense of the National Security Agency’s domestic spying program yesterday, kicking off a White House campaign aimed at convincing the public that the effort is both legal and necessary to combat al Qaeda terrorists.
Gen. Michael V. Hayden, the former NSA chief who is now deputy director of national intelligence, told reporters in Washington that the warrantless eavesdropping on calls and e-mails between the United States and overseas was “targeted and focused” and did not constitute a “driftnet” over U.S. cities.
Hayden compared the intelligence techniques used in the program to the tactics employed in deciding whether to drop a 500-pound bomb on a terrorist target.
In a separate speech later in the day, President Bush also repeated his argument that Congress effectively endorsed the program of eavesdropping without warrants under its authorization of military action against al Qaeda, dubbing the effort “a terrorist surveillance program.”
The president also focused on classified briefings that the White House gave for some senior leaders in Congress. “It’s amazing that people say to me, ‘Well, he’s just breaking the law.’ If I wanted to break the law, why was I briefing Congress?” he said, eliciting laughter from the crowd at Kansas State University.
The remarks opened a three-day blitz by the administration aimed in part at making the controversial eavesdropping program a political winner for the White House in a midterm election year. Attorney General Alberto R. Gonzales will discuss the legal underpinnings for the program today, and Bush will pay a rare visit to NSA headquarters tomorrow to highlight its work.
The strategy was signaled by White House Deputy Chief of Staff Karl Rove in a speech last week that framed the issue as a contest between Republicans who want to protect Americans from terrorists and Democrats who are trying to sabotage the administration’s efforts. Some key Republicans have expressed misgivings about the program’s legality as well, and the Senate Judiciary Committee has scheduled hearings on the issue next month.
Rather than hope the matter goes away, Rove and other Bush advisers are eager to engage on the topic because they see it as a useful wedge issue to define Democrats as weak on terrorism. A similar tactic was used with great success by Republicans during midterm races in 2002.
Democrats immediately fired back in response to the remarks by Bush and Hayden. The office of Senate Minority Leader Harry M. Reid (D-Nev.) criticized Bush’s “refusal to come clean” about the NSA spying effort and issued a “graded report” alleging that Hayden’s speech was “poorly researched.”
Sen. John F. Kerry (D-Mass.) said in a statement that Bush “failed to explain why he considers himself above the law” and castigated the administration for failing to capture al Qaeda leader Osama bin Laden.
Some experts on intelligence and national security law have said that the president overstepped his authority in ordering the NSA spying, and that the 1978 Foreign Intelligence Surveillance Act (FISA) specifically prohibits such domestic surveillance without a warrant. But the Justice Department issued a “white paper” last week arguing that the president has inherent war powers under the Constitution allowing him to authorize the program.
“I’m mindful of your civil liberties and so I had all kinds of lawyers review the process,” Bush said yesterday.
Although the two speeches provided some new information about the NSA program, many crucial details remain unclear. Hayden, for example, did not describe whether the program consisted of listening to conversations or getting phone numbers and callers’ names or both. He also did not describe what happens to the information once it is collected by the NSA.
In addition, Bush and Hayden provided varying and sometimes contradictory descriptions of who has been targeted by the NSA spying. Bush said the program involved a “known al Qaeda suspect, making a phone call into the United States.” Hayden said one of the ends of an international call must be overseas but did not indicate that the suspected al Qaeda link must be foreign.
At various points in his remarks, Hayden said the program targeted communications “that we have reason to believe are al Qaeda communications,” that involve “someone we believe is associated with al Qaeda” or that “we have a reasonable basis to believe involve al Qaeda or one of its affiliates.”
Hayden said he could not provide more details about how the program works because it would give ammunition to terrorist enemies.
Hayden echoed a claim earlier this month by Vice President Cheney that, if the NSA program had been in place prior to the Sept. 11, 2001, attacks, “it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States.”
Like Cheney, however, Hayden did not mention that the NSA, CIA and FBI had significant information about two of the leading hijackers as early as January 2000 but failed to keep track of them or capitalize on the information, according to the Sept. 11 commission and others. He also did not mention NSA intercepts warning of the attacks the day before, but not translated until Sept. 12, 2001.
In addition to the NSA eavesdropping ordered by Bush, the former NSA director discussed his own initiative after the Sept. 11 attacks to sharpen and increase the focus of foreign collection on potential terrorists and to provide more information to the FBI. “We turned on the spigot of NSA reporting to the FBI in, frankly, an unprecedented way,” he said.
He said the warrantless domestic eavesdropping program allowed the NSA to act more rapidly and with less information than possible under FISA. That law requires convincing a special court that investigators have probable cause to believe a subject may be linked to a foreign power or terrorist group. And although the law allows emergency surveillance or searches for 72 hours, Hayden suggested that still would require too much evidence to proceed in many cases.