President George W. Bush authorized the domestic spying without the usual court warrants after the September 11, 2001 attacks.

Gonzales asserted that the ingenuity and determination of Al-Qaeda to launch new strikes against the United States made it necessary to devise equally creative means to combat terrorism.

"In this new kind of war it is both necessary and appropriate for us to take all possible steps to locate our enemy and know what they are plotting before they strike," Gonzales said.

The Bush administration has faced a torrent of criticism from Democrats and some members of the president's Republican party about the program.

Despite the lack of warrants, Gonzales insisted that the wiretaps by the National Security Agency are employed only in "certain very narrow circumstances" and fully comply with US law.

The electronic eavesdropping program, he said, "is necessary, it is lawful and it respects the civil liberties we all cherish."

Gonzales was questioned whether the monitoring had led to any indictments but would only quote the FBI as saying that it had been a "valuable program".

The Washington Post last week quoted current and former officials as saying that nearly all the potential suspects had been taken off the threat list.

Senator Arlen Specter, the Republican chairman of the Judiciary Committee, said Congress was aware of the terrorist risk, but that efforts to combat it must remain within established law.

Specter said he was skeptical of the administration assertion that the president, as commander-in-chief of the military, has the authority to use whatever means he deems necessary to combat terror.

The Foreign Intelligence Surveillance Act (FISA) allows the government to conduct eavesdropping without a court warrant for 72 hours, after which it must seek a warrant from a special court.

"The president of the United States has the fundamental responsibility to protect the country, but even ... the president does not have a blank check," Specter said.

Democrat Dianne Feinstein went even further, saying that in failing to get congressional authorization for the wiretaps, Bush had acted outside of the law.

"This administration is effectively saying it doesn't have to follow the law," she said. "This is a very slippery slope. It's fraught with consequences," she said.

Feinstein also complained that, weeks after the existence of the secret program was made public by the New York Times, lawmakers have yet to be fully briefed.

Bush has argued that he has power under the Constitution and a resolution passed by Congress after the September 11 attacks to take whatever action he deems necessary to protect the American public.

Former NSA head and now deputy director of national intelligence General Michael Hayden said Sunday that the eavesdropping is critical to protecting the United States from further attacks.

The Judiciary Committee plans two additional hearings on the secret wiretaps. Gonzales and Hayden were to brief the Senate Intelligence Committee Thursday on the program behind closed doors.

For some of Bush's more imaginative critics, the 12-hour delay generates images of Card, Deputy Chief of Staff Karl Rove and former White House aide I. Lewis "Scooter" Libby holding a late-night document-destruction party in the West Wing. Indeed, in questioning Gonzales' handling of the issue, Bob Schieffer, host of CBS's Face the Nation, noted that the half-day gap would have "give[n] people time to shred documents and do any number of things."

This delay took on renewed significance last week. The New York Daily News reported that Patrick Fitzgerald, the special prosecutor investigating the Plame scandal, told lawyers representing Libby that "many emails from [Vice President] Cheney's office at the time of the Plame leak in 2003 have been deleted contrary to White House policy." The computer system at the White House is supposed to automatically archive emails sent by the president and his aides. For reasons that are still unclear, these emails -- which may or may not be relevant to the Plame investigation -- were not preserved.

Could aides have used the 12-hour gap to conceal incriminating emails that pointed to staffers' role in exposing the identity of an undercover CIA agent? Prosecutors will no doubt explore this in some detail as the investigation continues, but it's important to note that political observers have understated the length of the delay itself -- by a factor of seven.

Indeed, the timeline of events over the five-day period between Friday, Sept. 26, 2003, and Tuesday, Sept. 30, 2003, highlights the fact that the 12-hour head start Gonzales gave Card is largely irrelevant. There was no reason for Card to call back Bush's top lieutenants to start concealing possible wrongdoing after the heads-up from Gonzales. If suppression was their plan, Rove, Libby and others could have begun covering their tracks several days in advance.

When Gonzales received formal notification about the investigation late on Monday, Sept. 29, the Justice Department was only making official what all of Washington already knew. A full three days before the counsel's office received notice, MSNBC reported that the CIA had directed the Justice Department to launch a criminal probe into the leak. In other words, White House aides with internet access learned on Friday night that they were being investigated but weren't told to start securing relevant materials until Tuesday morning, literally 84 hours later.

Perhaps, Bush supporters might argue, the MSNBC report went unnoticed at the White House. Maybe no one on the staff saw the report or any discussion of it on the many political websites that highlighted its significance at the time. Even assuming this is true, it's significantly harder for Bush aides to claim that they also missed a front-page article published in the Washington Post on Sunday, Sept. 28.

The Post's Mike Allen and Dana Priest explained, "At CIA Director George J. Tenet's request, the Justice Department is looking into an allegation that administration officials leaked the name of an undercover CIA officer to a journalist, government sources said yesterday." The same article quoted a senior administration official saying that "two top White House officials called at least six Washington journalists and disclosed the identity and occupation of [undercover agent Plame]." Referring to the leak, the official told the Post, "Clearly, it was meant purely and simply for revenge."

This front-page, above-the-fold article hit doorsteps in D.C. a full 48 hours before Gonzales instructed the staff to preserve materials relevant to the investigation. Considering the news about the investigation, and the provocative quotes from a top administration official, it stands to reason the article caught the attention of some White House employees.

As such, it strained credulity when Alberto Gonzales told a national television audience last summer that "no one [on the White House staff] knew about the investigation" until he received word from the Justice Department. Gonzales may have promptly called Card on the evening of Monday, Sept. 29, but neither Card nor anyone else in the West Wing needed word from the White House counsel's office to know that an investigation was under way. Like anyone with access to the national media that weekend, they learned about the probe days beforehand.

It's understandable that congressional Democrats and others have raised questions about whether Gonzales, now the attorney general, sat on the investigation for 12 hours in order to help give his colleagues in the White House time to cover up their alleged misdeeds. The more relevant question, however, is what those same Bush aides did with the 84-hour notice they received about the federal probe from news reports.

As many observers have noted, a great deal of damage can be done over that period of time. As Congressional Quarterly's Craig Crawford said on MSNBC in July, "[A]nybody who was worried about emails that they had written in the past on this topic had a lot of time to word-search it and delete it, if they wanted to." In light of the now-missing emails from the vice president's office from the relevant time period, Crawford's speculation seems almost prescient.

The concern here has nothing to do with Fitzgerald's thorough investigation, but rather whether Fitzgerald's probe has had access to all the information to which it was entitled. Sen. Chuck Schumer, D-N.Y., one of several Senate Democrats commenting on this gap in 2003, said, "Every good prosecutor knows that any delay could give a culprit time to destroy the evidence." In this case, the alleged perpetrators wouldn't have had to rush.

The controversy is not entirely without precedent. During the Clinton presidency, thousands of emails went missing after they were improperly archived, prompting congressional Republicans and Independent Counsel Robert Ray to have minor conniptions. At the time, Rep. Dan Burton, R-Ind., launched hearings into the missing emails through the House Government Reform and Oversight Committee he chaired, exploring the possibility of a coverup.

In theory, congressional Republicans could also consider hearings to explore the missing emails from Cheney's office and the suspicious 84-hour gap. To date, however, GOP lawmakers have resisted any and all requests for hearings into the matter.

Hearings or not, the emails are unlikely to remain missing forever. Patrick Fitzgerald's investigation is ongoing, and prosecutors appear interested in the misplaced electronic correspondence and its possible role in the leak.

Steve Benen is a freelance writer and editor of The Carpetbagger Report.

Under the ordinary rules that courts use to harmonize potentially conflicting laws, the more specific one typically governs. Here, that would seem to be the 1978 law, the Foreign Intelligence Surveillance Act, or FISA, which created an elaborate legal scheme to regulate wiretaps, as well as a secret court that promptly hears warrant applications.

If a later law means to override or amend an earlier one, moreover, courts generally require it to say so specifically. The 2001 resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Whether the 2001 resolution created an exception to the 1978 law depends on whether "necessary and appropriate force" includes surveillance of the enemy. Neither detentions nor surveillance was mentioned in the resolution. The Bush administration says both are natural incidents of the use of force in wartime.

In 2004, the Supreme Court ruled that the resolution encompassed the detention of an American citizen captured on a foreign battlefield in a conventional war. But critics say spying on communications involving people in the United States is very different from detaining an enemy combatant.

Last month the Supreme Court confronted a broadly similar situation. The administration argued that a general federal statute, the Controlled Substances Act, gave the attorney general authority to override a specific Oregon law, the Death With Dignity Act. The court rejected that argument, saying the federal law did not specifically grant such authority. Congress, the court said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouse holes."

Under that reasoning, the authorization for force to head off terrorism may be too general to override the 1978 law.

Mr. Gonzales acknowledged yesterday that at least some members of Congress did not realize they were voting for a surveillance program when they voted for the force resolution.

"But we are a nation governed by written laws," Mr. Gonzales said, "not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president. And in this case, those plain words could not be clearer."

The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, disagreed.

"This authorization is not a wiretap statute," Mr. Leahy said. "We know what the wiretap statute looks like. This is not it."

Senator Lindsey Graham, Republican of South Carolina, said he "never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche."

"In all honesty," Mr. Graham told Mr. Gonzales, "this statutory-force-resolution argument that you're making is very dangerous in terms of its application for the future." An expansive reading of the 2001 resolution, Mr. Graham said, may make it "harder for the next president to get a force resolution if we take this too far."

Mr. Gonzales maintained yesterday that the two enactments "complement each other."

The committee's chairman, Senator Arlen Specter, Republican of Pennsylvania, responded, "Well, that just defies logic and plain English."

Mr. Gonzales conceded that his was not the only possible way to harmonize the two Congressional actions. But the administration's reading is, Mr. Gonzales said, "fairly possible." Given that, he continued, the Constitution requires deference to the executive branch's interpretation under a doctrine known as constitutional avoidance, which counsels against reading statutes in a way that creates constitutional conflict when another reasonable interpretation is available.

In a letter to Congress last week, a group of 14 constitutional scholars and former government officials said that "FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply."

The administration has a fallback position, but it was not one Mr. Gonzales discussed much yesterday. Even if the force authorization did nothing to alter the restrictions set out in the 1978 law, he said, the president's constitutional authority as commander in chief may by itself allow the surveillance program.

"Fortunately," Mr. Gonzales continued, "we need not address that difficult question."

The senators questioning Mr. Gonzales often appeared frustrated and skeptical. That was due in some degree to the fact that many of them had taken part in enacting at least one of the two measures. But it was also a reaction to Mr. Gonzales's apparent position that neither Congress nor the courts had a role to play in clarifying any ambiguity.

Mr. Specter urged the administration to present the surveillance program to the FISA court "lock, stock and barrel."

"Let them see the whole thing," Mr. Specter said, "and let them pass judgment."

Mr. Gonzales did not provide a direct answer. He did say that in the case of some individual warrant applications, the administration did not believe it could move quickly enough to satisfy the 1978 law, though he acknowledged that the law allows applications to be filed up to 72 hours after the surveillance has started.

Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days after the spying program was disclosed by The New York Times. At the time, he said the administration had not sought an amendment to the 1978 law because "certain members of Congress" had "advised that that would be difficult, if not impossible." Since then Mr. Gonzales has said the real problem is that such legislation could not be enacted without compromising the program.

WASHINGTON, D.C.—Attorney General Alberto Gonzales refused to say today whether the National Security Agency's domestic surveillance program had opened first-class mail. Gonzales is testifying before the Senate Judiciary Committee, which is holding hearings into the legality of President Bush's spying on Americans.

Gonzales was called to testify in part so that he could try to explain why President Bush ordered American phones wiretapped and e-mail searched by the NSA without approval from the spy court known as FISA, short for Foreign Intelligence Surveillance Act.

Gonzales also told the Senate committee that information from the surveillance is "collected and retained." Whether the intelligence gathered in this way could be held and used in other cases or for other purposes is unclear. Gonzales would not say whether surveillance information was used in programs other than the NSA intercepts.

And he refused to answer a question from California Democratic senator Dianne Feinstein on whether he believes the posse comitatus act could be suspended. That act prohibits the military from intervening in domestic affairs.

The Bush administration has repeatedly insisted it informed leaders of both parties in Congress before the NSA programs was begun. Feinstein has said that when the White House sought to insert language approving electronic surveillance "inside the U.S." into legislation, Tom Daschle, then minority leader, had replied, "absolutely not."

In answer to a question from Republican senator Mike DeWine of Ohio, Gonzales said that despite an increase in staff, it still "takes too long to get FISA's approved," adding, "My applications are often an inch thick. . . . Members of the FISA court are heroes. . . . They are killing themselves making themselves available to sign off," but they're just not fast enough.

The subject of opening mail came up in this exchange between Gonzales and Democratic senator of Vermont this morning when the senator asked whether Bush believes his supposed authorization would be enough to allow the government to open people's mail.

"There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing," Gonzales said.

"You're not answering my question," Leahy retorted.

"Does this law authorize the opening of first-class mail of U.S. citizens? Yes or no?"

"That's not what's going on," Gonzales said. "We are only focusing on international communications, where one part of the conversation is al Qaeda."

Gonzales later confused the senators by saying transmissions within the U.S. among al Qaeda individuals and cells were not covered by the NSA program. The attorney general elaborated on this point, saying that other laws covered intercepts of such transmissions, and that the Justice Department was monitoring those intercepts.

The White House has resolutely defended warrantless eavesdropping, saying that we are at war and clandestine surveillance helps to protect us. in a speech at Kansas State University, President Bush explained, “What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why.”

Later the same day, the Attorney General, Alberto Gonzales, appeared on The PBS News Hour. Asked why the Administration didn’t honor FISA, which requires a special court to authorize eavesdropping, Gonzales responded, “For operational reasons, there were some issues that made it difficult to use FISA.”

The Attorney General wouldn’t elaborate, but others have suggested “operational reasons” why the Bush Administration isn’t using FISA to obtain a warrant. One would be that the sending or receiving telephone number was obtained using torture or that the informant is held in violation of US law. However, most civil-rights activists believe that the tapped phone number resulted from a gigantic fishing expedition, so called “data mining,” that the courts would not approve of.

Most Americans don’t understand what is meant by “data mining,” a digital “fishing expedition.” To clarify what’s happening, I’ve created a hypothetical scenario: Suppose that my daughter is in India visiting her in laws. I call her to wish her a happy birthday. Instead of dialing the country code for India, 91, I dial the country code for Pakistan, 92; and instead of dialing the city code for Bombay, 22, I dial the city code for Karachi, 21. I make a transposition error. As a result, instead of getting my daughter’s extended family, I reach the office of the “Jihad R Us” madrasah. When I am greeted in Urdu, I realize my mistake and hang up. Meanwhile, the National Security Agency computers monitoring international calls note that I have contacted “an organization that is affiliated with al-Qaida.”

In addition to phone traffic, the NSA computers have access to all my personal and financial data. Alerted by my call, their software scans my digital records and finds that I recently made a contribution, by means of my Visa card, to an organization in Pakistan – they don’t care that it was for humanitarian assistance to earthquake refugees. At this point, the NSA computers flag me as a “possible terrorist sympathizer;” their software decision logic, their algorithm looks at my data and computes my “threat score,” like the FICO score assigned to determine credit worthiness. Because I have a threat score above a certain threshold, the NSA software makes an algorithmic decision to monitor my phone calls, read my email, and check my financial transactions. The NSA computer system goes “fishing” in my personal data. This is “data mining;” looking for patterns in massive amounts of data. In this case the NSA software is looking for actions – phone calls, money transfers – that indicate an al-Qaida supporter.

According to New York Times reporters Eric Lichtbau and James Risen the automated process that I have described, the decision to place Americans under digital surveillance has been made roughly 500 times per day, every day since 9/11. Hundreds of thousands of Americans have been caught in NSA’s fishing net. This explains why the Bush Administration hasn’t followed the FISA procedures; the NSA computer system is flagging many Americans as suspects and doing so without probable cause – the FISA courts wouldn’t permit this if they knew about it.

Bear in mind that all the eavesdropping decisions are made by computer software. The NSA software scrutinizes my daily transaction stream auto magically; they eavesdrop on all my phone and email traffic as well as my credit card and bank transfers – everywhere I leave a digital trail. In real time they scan my digital communications for key words such as “bomb,” “attack,” or anything else that they deem to be a trigger. They also watch to see if I am sending money to suspicious organizations, or have made unusually large cash withdrawals or deposits.

I am a computer-literate individual in a high-tech culture. As a result I leave a broad trail littered with digital breadcrumbs. The NSA bloodhounds gobble this up.

Of course, I don’t know that I’m under surveillance. Neither do the courts. Only the NSA computers know, and the Bush Administration - “big brother” is watching me.

Next time, is this legal?


Bob Burnett is a Berkeley writer and Quaker actvist. He is particularly interested in progressive morality and writes frequently on the ethical aspects of political and social issues.

Carter made the remarks at a union hall near Las Vegas, where his oldest son, Jack Carter, announced his candidacy for the U.S. Senate.

The former president also rebuked Attorney General Alberto Gonzales for telling Congress that the spying program is authorized under Article 2 of the Constitution and does not violate the 1978 Foreign Intelligence Surveillance Act passed during Carter's administration. Gonzales made the assertions in testimony before the Senate Judiciary Committee, which began investigating the eavesdropping program Monday.

"It's a ridiculous argument, not only bad, it's ridiculous. Obviously, the attorney general who said it's all right to torture prisoners and so forth is going to support the person who put him in office. But he's a very partisan attorney general and there's no doubt that he would say that," Carter said. "I hope that eventually the case will go to the Supreme Court. I have no doubt that when it's over, the Supreme Court will rule that Bush has violated the law."

The former president said he would testify before the Judiciary Committee if asked.

"If my voice is important to point of the intent of the law that was passed when I was president, I know all about that because it was one of the most important decisions I had to make."

And it didn't stop an undercover sheriff's agent from infiltrating a meeting of citizens planning a peace rally, or sheriff's employees photographing participants, or clandestine spying on many other peaceful local demonstrations since 2002.

It's all in public records, and reams of additional records show that since 9/11, government agencies have carried out the same kind of chilling surveillance of citizens nationwide.

That's why we strongly back the American Civil Liberties Union of Florida's effort to see how far that spying extends.

The chapter has filed a Freedom of Information Act request to find out if the Pentagon has been spying on Florida citizens legally and peacefully protesting government policies.

The group also is asking whether the Brevard Sheriff's Office and federal agencies are sharing information on such citizens. And if so, why.

The filing seeks any information on the Florida ACLU chapter and seven other organizations, including Brevard groups Patriots for Peace, Melbourne Counter Inaugural, and the Global Network Against Nuclear Weapons and Nuclear Power in Space, which has local members.

It also wants information on four Brevard peace activists.

Similar filings have been made across the county -- and for good reason.

Recently, some groups, including the Fort Lauderdale Friends Meeting -- the Quakers -- discovered they are listed in the Pentagon's TALON database.

TALON is supposed to track terror threats. But, the ACLU says, it has been gathering information on peaceful activists and monitoring anti-war and anti-military recruitment demonstrations.

Following exposure of the domestic spying, the Defense Department last month said it would offer intelligence personnel "refresher training" on collecting information on U.S. persons.

And following public pressure last year, the Melbourne Police Department and the Brevard Sheriff's Office said they would start using surveillance only when there was a credible threat of criminal activity.

There is no question the nation must make every effort to find and stop real terrorists. But what has been revealed over the past year shows a politically motivated waste of precious resources needed for that fight.

It is also reminiscent of the ugly "Red Scare" McCarthyism of the 1950s, and the Nixon administration's use of government agencies to intimidate opponents and stifle Vietnam War dissent.

Abuse of government power under the guise of security is intolerable in a free nation.

To show it fully understands the constitutional guarantee of free speech, the Defense Department must respond to the records requests -- quickly and completely.