Gonzales "clarifies" testimony; situation cloudier
Gonzales… wrote: "I did not and could not address . . . any other classified intelligence activities." Using the administration's term for the recently disclosed operation, he continued, "I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject" of the Feb. 6 hearing.This is why we need real hearings and serious investigations. The legal justification has been shifting, perhaps because they realized that their initial basis for authorizing the program wasn't adequate.
At least one constitutional scholar who testified before the committee yesterday said in an interview that Gonzales appeared to be hinting that the operation disclosed by the New York Times in mid-December is not the full extent of eavesdropping on U.S. residents conducted without court warrants.
"It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about," said Bruce Fein, a government lawyer in the Nixon, Carter and Reagan administrations.
A Justice Department official who spoke only on the condition of anonymity because of the sensitive nature of the program, said, however, that Gonzales's letter "should not be taken or construed to be talking about anything other than" the NSA program "as described by the president."
In his letter, Gonzales revisited earlier testimony, during which he said the administration immediately viewed a congressional vote in September 2001 to authorize the use of military force against al-Qaeda as justification for the NSA surveillance program. Bush secretly began the program in October 2001, Gonzales's letter said.
On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."
But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."
Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."
One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification.
Ranking Judiciary Committee Democrat Patrick J. Leahy (Vt.) said Gonzales's letter falls "far short of helping us focus this picture. Instead, they blur it further with vague responses about their shifting legal analysis for this illegal domestic spying and with unclear clarifications on the scope of the program over the last four years."
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