Feinstein on Senate Eavesdropping Hearings
STEVE INSKEEP, host:
Attorney General Alberto Gonzales says the Bush Administration had legal authority to spy on Americans without a warrant. At a Senate hearing yesterday, he defended the program.
Attorney General ALBERTO GONZALES: It is the modern equivalent to a scout team sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility, and secrecy are essential to its success.
INSKEEP: One of the senators questioning Gonzales was Dianne Feinstein, a democrat from California, who's on the phone this morning. Senator, good morning.
Senator DIANNE FEINSTEIN (Democrat, California): Good morning.
INSKEEP: Did you learn anything new about the Administration's rationale for eavesdropping here?
Senator FEINSTEIN: Well, no, I didn't really learn anything new. It's a theory. I don't happen to agree with the theory. If you'd like, I'll tell you how I think it goes.
INSKEEP: Go ahead.
Senator FEINSTEIN: It, well, there is a law; it's called the Foreign Intelligence Surveillance Act. It was passed in 1978, after considerable thought and debate by the Congress, and after a 1972 case. It essentially says it is the exclusive means for all electronic surveillance in the country, and that exclusive means is a special secret court that was set up. It's staffed 24/7. There are 11 federal judges appointed by the Chief Justice, and they review and give a court order or a warrant for every wiretap within America.
Now, the Attorney General said that that law is set aside, essentially, by the resolution to authorize the use of military force, which was passed quickly, seven days after 9-11, and gave the President the authority to use military force against terrorists.
INSKEEP: Also says the President has constitutional authority to command the military. This is a military agency.
Senator FEINSTEIN: Yeah, well, that's the next thing. If that isn't adequate to do it, then he says that the role of Commander in Chief, and his plenary authority, gives him the authority to do this.
The problem with that is, it runs smack up against the Fourth Amendment. Now, there is nothing in the role of the President as Commander in Chief that gives him the ability to override law. And that, that's my contention. And I think it's probably going to have to be settled by the Supreme Court.
There is no precedent since the 1978 FISA law, so what we have here is a kind of conundrum, if you will. The President says we gave him this authority. I believe that it is explicit that we did not, because the Administration shortly, before the resolution to authorize use of force came to the floor, asked that it be amended to include the words, inside the United States after appropriate use of force, and that was denied.
INSKEEP: Senator, we've just got a few seconds, but I want to ask this question very briefly. The Senate Intelligence Committee, on which you are a member, will hold closed door hearings on the operational details of this program later this week. You said you don't think the Administration is telling you everything. What do you still want to know?
Senator FEINSTEIN: Well, what I want to know is; how big is this program? What is the link to al-Qaeda? If somebody has a link, and is tapped, and we all believe terrorists should be wiretapped, that's not the problem, but is the person they call and the next person, and the next person, and the next person also wiretapped? And where does that data go? How long is it kept? If someone is found to be innocent, is the data done away with?
INSKEEP: Okay. Senator, we've got to stop there. Thank you very much. That's Senator Dianne Feinstein, a democrat of California, commenting on the National Security Agency eavesdropping.
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