Gonzales Suggests Legal Basis for Domestic Eavesdropping

The New York Times
Gonzales Suggests Legal Basis for Domestic Eavesdropping
By ERIC LICHTBLAU

WASHINGTON, April 6 — Attorney General Alberto R. Gonzales suggested on Thursday for the first time that the president might have the legal authority to order wiretapping without a warrant on communications between Americans that occur exclusively within the United States.

"I'm not going to rule it out," Mr. Gonzales said when asked about that possibility at a House Judiciary Committee hearing.

The attorney general made his comments, which critics said reflected a broadened view of the president's authority, as President Bush offered another strong defense of his decision to authorize the National Security Agency to eavesdrop without warrants on international calls and e-mail messages to or from the United States.

Mr. Bush, in an appearance in North Carolina, told a questioner who attacked the program that he would "absolutely not" apologize for authorizing it.

"You can come to whatever conclusion you want" about the merits of the program," Mr. Bush said. "The conclusion is I'm not going to apologize for what I did on the terrorist surveillance program."

At the House hearing, Mr. Gonzales faced tough questioning from Democrats and Republicans but declined to discuss many operational details.

Representative F. James Sensenbrenner Jr., the Wisconsin Republican who is chairman of the Judiciary Committee and one of the administration's staunchest allies, accused the administration of "stonewalling."

"Mr. Attorney General, how can we discharge our oversight responsibilities if every time we ask a pointed question, we're told that the answer is classified?" Mr. Sensenbrenner asked. "Congress has an inherent constitutional responsibility to do oversight. We are attempting to discharge those responsibilities."

The House and Senate have conducted limited inquiries into the surveillance program, which many Democrats contend is illegal.

Republicans on the Senate intelligence panel have agreed on measures to impose new oversight but allow wiretapping without warrants for up to 45 days.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, has proposed that the Foreign Intelligence Surveillance Court have a role in ruling on the legitimacy of the program. In the past, Mr. Gonzales and the administration have avoided discussing what they consider hypothetical possibilities in the face of Democrats' accusations that Mr. Bush has asserted unbridled authority to fight terrorism.

At the hearing, Mr. Gonzales inched closer toward acknowledging that intercepting purely domestic calls could be considered legally permissible in his view if the communications involved Al Qaeda.

"You would look at precedent," he said. "What have previous commander in chiefs done?"

Answering his question, he cited Woodrow Wilson's authorizing the interception of all cables to and from Europe in World War I "based upon the Constitution and his inherent role as commander in chief."

Mr. Gonzales said he would use that legal framework to decide whether intercepting purely domestic communications without a warrant was legally permissible. He would not say whether such wiretapping has been conducted.

The attorney general and other administration officials have said the National Security Agency eavesdropping was authorized just to monitor communications with one end outside the United States.

Representative Adam B. Schiff, the California Democrat who raised the question with Mr. Gonzales, said the refusal to rule out purely domestic interceptions without a warrant was "very disturbing."

The position, Mr. Schiff said, "represents a wholly unprecedented assertion of executive power."

"No one in Congress would deny the need to tap certain calls under court order," he added. "But if the administration believes it can tap purely domestic phone calls between Americans without court approval, there is no limit to executive power. This is contrary to settled law and the most basic constitutional principles of the separation of powers."

The Justice Department later backed away somewhat from Mr. Gonzales's statement and said his comments should not be interpreted as a change in policy.

A department spokeswoman, Tasia Scolinos, said, "The attorney general's comments today should not be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis."