Questions Still Hover Over Wiretapping Program

It has been five months since the story of the National Security Agency's warrant-less wiretapping program first broke. But basic questions remain: Is the program legal? How big is it? How many people have been targeted?

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. With Steve Inskeep in Baghdad this week, I'm Renee Montagne.

The Senate is gearing up for confirmation hearings for General Michael Hayden as the next chief of the CIA. Front and center at those hearings will be Hayden's role in the Bush Administration's controversial domestic surveillance program. Hayden helped create the program when he was director of the National Security Agency. Now some lawmakers say they're looking forward to grilling him about it.

As NPR's Mary Louise Kelly reports, a number of senators have wanted to break through what they call administration stonewalling about the program and they see Hayden's hearings as their chance to get some answers.

MARY LOUISE KELLY reporting:

So far, no senators have actually said they'll vote against Hayden's nomination. Oregon Democrat Ron Wyden is among those waiting to hear the general's testimony before making up his mind. But Wyden says the NSA eavesdropping program is one General Hayden will have to address.

Senator RON WYDEN (Democrat, Oregon): He and the administration finally have the opportunity to explain how this program works and how it ensures that we can fight terrorism ferociously, while at the same time, protecting privacy.

KELLY: Wyden says he's struggling to reconcile testimony General Hayden gave in his last confirmation hearing, 13 months ago, with information that's since emerged about the wiretapping program. The program allows the NSA to wiretap Americans without obtaining a warrant. Senator Wyden says some of Hayden's previous answers about it, now appear contradictory, and that, overall, Congress has been kept in the dark.

Sen. WIDEN: What people need to know, is that Congress is setting about trying to reform a program, about which, it knows virtually nothing. Congress doesn't do that great reforming programs that it knows a lot about. I've compared it to a physician trying to treat a patient who hasn't been diagnosed.

KELLY: It's true, that five months after the NSA's warrantless wiretapping activities came to light, some pretty basic questions remain unanswered. We don't know how big the program is, whether it involves tapping dozens of people or thousands. We don't know if there may still be other domestic spying efforts that remain secret. And, there's no consensus on perhaps the biggest question of all: is the program legal. The Bush Administration steadfastly insists it is. Many legal experts disagree.

Arlen Specter, who chairs the Senate Judiciary Committee, says he has no idea.

Senator ARLEN SPECTER (Republican, Pennsylvania): Well, the question of whether the president has done something wrong, I state candidly: we don't know, because we don't know what the program is.

KELLY: That's not for lack of trying. Specter's committee has held four hearings on the matter. Witnesses have included Attorney General Alberto Gonzalez. But, Senator Specter says, Gonzalez was less than forthcoming. So much so, that afterwards, Specter decided to call him and invite him back to testify again.

Sen. SPECTER: And after I finished talking to him, I thought it wouldn't do any good - to call him back - because he won't tell us anything. He won't tell us anything.

KELLY: Now Specter, a Republican, says he plans to use General Hayden's hearings to raise questions about the eavesdropping program. And Specter doesn't rule out trying to hold up the nomination until he gets answers. Senator Specter and Wyden are not among the tiny group of lawmakers who receive regular classified briefings on the NSA program.

Carl Levin, senior Democrat on Armed Services, is. He says so far, the White House has failed to hand over key papers.

Senator CARL LEVIN (Senior Democrat on Armed Services; Democrat, Michigan): And it's critically important that we get the actual documents that lay out the program. We don't have that.

KELLY: In other words, the authorization from President Bush that ordered the creation of the warrantless wiretapping program.

Sen. LEVIN: We, it seems to me, must have that if we're going to be able to fully understand the origin of the program; the dimensions of the program; as well as how it operates.

KELLY: Senator Levin stresses he supports the goal of the surveillance program. He's all for being able to listen in on conversations with al-Qaida. But, he says he's still a long way from understanding exactly how it works and whether it's legal. Levin will now be able to put his questions to Michael Hayden. Hayden's boss, National Intelligence Director John Negroponte, says no one's better equipped to answer them.

Mr. JOHN NEGROPONTE (Director, National Intelligence Agency): He's already been, both before the public and the Congress, in explaining and defending the program as being in the interest of the United States, as it most definitely is. It'd be fair to say that we expect quite a bit of questioning about this issue, but I believe that General Hayden will be very well prepared to answer any questions that might arise.

KELLY: If the White House strategy had been to wait for the furor to blow over, nominating Hayden would make no sense. But many in Congress believe the White House decided to pick a fight in order to rally conservatives to the president's cause.

Mary Louise Kelly, NPR News, Washington.

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