Attorney General Alberto Gonzales insisted Monday that President Bush is fully empowered to eavesdrop on Americans without warrants as part of the war on terror. He exhorted Congress not to end or tinker with the program.
Gonzales' strong defense of Mr. Bush's program was challenged by Republican Sen. Arlen Specter, chairman of the Judiciary Committee, and committee Democrats during sometimes contentious questioning.
Specter told Gonzales that even the Supreme Court had ruled that "the president does not have a blank check." Specter suggested that the program's legality be reviewed by a special federal court set up by the 1978 Foreign Intelligence Surveillance Act.
"There are a lot of people who think you're wrong. What do you have to lose if you're right?" Specter, R-Pa., asked Gonzales.
The attorney general sidestepped the question directly, just saying, "Obviously, we would consider and are always considering methods of fighting the war effectively against al Qaeda."
However, he said that court was already quite familiar with the program. He also said he did not think the 1978 law needed to be modified.
And, said Gonzales, "To end the program now would afford our enemy dangerous and potential deadly new room for operation within our borders."
Specter told Gonzales that federal law "has a forceful and blanket prohibition against any electronic surveillance without a court order."
While the president claims he has the authority to order such surveillance, Specter said, "I am skeptical of that interpretation."
A former Texas judge, Gonzales played an important role as White House counsel in developing the legal justification for the spy program. He served in that post from January 2001 to February 2005.
CBS News correspondent Bob Fuss reports the attorney general is making two arguments, both being sharply questioned, for the president bypassing the law that requires warrants for all wiretaps of Americans' phone calls.
The first is that when Congress authorized all "necessary force" to track down the terrorists after 9/11 that included the right to listen to phone calls; and second, that the U.S. is at war and the president's war powers include the power to spy on the enemy.
"The president is acting with authority both by the Constitution and by statute," Gonzales said.
Committee Democrats, who have generally contended that Mr. Bush is acting illegally in permitting domestic surveillance by the National Security Agency, sharply grilled Gonzales.
Sen. Patrick Leahy, D-Vt., asked if the authorization Mr. Bush claims to have would also enable the government to open mail — in addition to monitoring voice and electronic communications.
"There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing," Gonzales said.
"You're not answering my question," Leahy retorted. "Does this law authorize the opening of first class mail of U.S. citizens? Yes or no."
"That's not what's going on," Gonzales said. "We are only focusing on international communications, where one part of the conversation is al Qaeda."
In a related development, a published report Monday said the nation's largest long-distance carriers cooperated with the NSA's wiretapping of international calls without warrants.
A report in USA Today says MCI, Sprint and AT&T grant access to their systems without warrants or court orders, and provide call-routing information that helps physically locate the callers.
Gonzales reiterated the administration's contention that Mr. Bush was authorized to allow the NSA to eavesdrop, without first obtaining warrants, on people inside the United States whose calls or e-mails may be linked to terrorism.
Sen. Edward M. Kennedy, D-Mass., told Gonzales the administration broke with the time-honored system of checks and balances by not seeking greater congressional cooperation.
Kennedy said the eavesdropping program could actually weaken national security, raising the prospect that terror suspects could go free if courts rule evidence collected from such surveillance to be tainted.
"We're taking a risk with national security which I think is unwise," Kennedy said.
"We don't believe prosecutions are going to be jeopardized because of this program," Gonzales told Kennedy.
Gonzales declined to discuss details of the operation, as skeptics of the program have demanded. "An open discussion of the operational details of this program would put the lives of Americans at risk," he said.
Leahy predicted over the weekend that the committee would have to subpoena the administration to obtain internal documents that lay out the legal basis for the program. Justice Department officials have declined, citing in part the confidential nature of legal communications.
"I think, ultimately, we're going to have to subpoena them," Leahy said on CBS' Face the Nation, expressing doubt that lawmakers would get the material otherwise.
Specter said Sunday that he's open to that. "If the necessity arises, I won't be timid," he said.
The Judiciary Committee's Democrats also want Specter to call more administration officials for questioning, including former Attorney General John Ashcroft and ex-Deputy Attorney General Jim Comey. Comey reportedly objected to parts of the program.