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White House steps up defense of domestic eavesdropping

Bush, former NSA chief present legal basis for program

Bush: "I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process."


National Security Agency (NSA)
George W. Bush
Arlen Specter

(CNN) -- President Bush and other officials Monday intensified their defense of a domestic surveillance program that supporters say protects against terrorism and critics say threatens civil liberties.

The president told an audience at Kansas State University in Manhattan that the congressional resolution passed in the wake of the September 11 attacks that authorized the invasion of Afghanistan and other counterterrorism measures gave him the legal authority to initiate the program.

Bush also said he kept key members of Congress informed.

"You know, it's amazing that people say to me, 'Well, he was just breaking the law.' If I wanted to break the law, why was I briefing Congress?" Bush said, apparently referring to former Vice President Al Gore's accusation last week that he was "breaking the law" by authorizing the program. (Full story)

"These are not phone calls within the United States," Bush said. "This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.

"I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress ... about this program."

Bush reportedly authorized the National Security Agency to intercept communications between people inside the United States, including American citizens, and terrorist suspects overseas without obtaining a court warrant.

Some critics call the program illegal, contending it threatens civil liberties and privacy rights.

The American Civil Liberties Union and the Center for Constitutional Rights filed lawsuits last week against the government to stop the program. ( Full story)

Bush wasn't the only official to stand by the program Monday. In Washington, Air Force Gen. Michael Hayden, the former NSA chief when Bush first authorized the surveillance program after September 11, 2001, staunchly came to its defense.

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such," said Hayden, who now is principal deputy director of national intelligence.

Addressing privacy concerns prompted by the program, Hayden said, "We know we can only do our job if we have the trust of the American people."

The general said, "We're going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans."

He said he called a meeting in October 2001 shortly after the program was authorized and told key members of the NSA work force "what we're going to do and why. I also told them that we're going to carry out this program and not go one step further."

The general said three NSA attorneys provided independent opinions that the program was legal. "The agency does everything with a lawyer looking over their shoulders," Hayden said.

He said the program targets intercepted communication initiated or terminated in a foreign country. Judgments of what communication is deemed to be directly tied to al Qaeda is made by NSA professionals, according to Hayden.

Any intercepts of conversations unrelated to the NSA's mission "would be destroyed and not reported," Hayden said.

Bush and Hayden are among a string of high-level administration officials set to make public appearances about the program this week, culminating with the president's visit Wednesday to NSA headquarters outside Washington.

Role in 'preventing attacks' cited

The White House's renewed defense of the program began Monday morning as spokesman Dan Bartlett told CNN it has "directly played a role in preventing attacks on our homeland" and protections are in place to prevent its abuse.

"There are multiple checks and balances to make sure what we're doing is targeting ... international phone calls of terrorists, not the conversations between two families coordinating a family vacation," Bartlett said. "We have very strict laws, very strict oversight. This is a targeted program, and I think most of the American people would be very angry if they thought we weren't doing just this."

Critics have questioned that legal rationale, pointing to a law passed by Congress in the 1970s requiring executive branch agencies to get approval for domestic surveillance requests from a special court, whose proceedings are secret to protect national security.

They point out the administration could accomplish the same goals legally by taking requests for warrants before the court under the Foreign Intelligence Surveillance Act -- and doing so as long as 72 hours after the wiretaps were begun in cases where time is of the essence.

"I don't think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11, or to deal with a lethal enemy who likely already had combatants inside the United States," Hayden said.

"We go down this path because our operational judgment ... is much more effective, so we do it for that reason," he said. Nevertheless, Hayden said that FISA has been a "remarkably successful tool."

But Hayden said the NSA program allows faster movement than is possible under FISA.

"NSA cannot, under the FISA statute, put someone on coverage and go ahead and play for 72 hours while it gets a note saying it's OK," he said. "The attorney general approves the emergency FISA coverage, and the attorney general's standard is a body of evidence equal to that which we would present to the court."

On Tuesday, Attorney General Alberto Gonzales is to speak publicly on the surveillance program. He's also set to appear next month before a Senate Judiciary Committee hearing investigating the program.

It would be impossible to monitor all international calls made by Americans, Hayden said, noting that in 2003 such calls represented 200 billion minutes.

Asked whether al Qaeda operatives must assume their communications are monitored, Hayden replied, "They don't always act like they know they're being monitored."

Sen. John Kerry on Sunday said the country is "prepared to eavesdrop wherever and whenever necessary in order to make America safer. But we put a procedure in place to protect the constitutional rights of Americans."

If the current system -- in which a special court can approve such wiretaps, even retroactively -- is inadequate, the administration can come to Congress to approve a new law, Kerry said. (Full story)

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