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Senators challenge Gonzales on spying

Republican chairman backs court review of eavesdropping

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Attorney General Gonzales argues Monday that the NSA domestic spying program is legal.

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Alberto Gonzales

WASHINGTON (CNN) -- Attorney General Alberto Gonzales defended the Bush administration's controversial domestic eavesdropping program before a skeptical Senate committee Monday, with the panel's Republican chairman suggesting it be reviewed by a court.

All eight Democrats on the 18-member Senate Judiciary Committee, along with four of its 10 Republicans, raised concerns about the program, the existence of which was revealed in December.

But Gonzales said the administration has the power to eavesdrop without a court warrant on calls into or out of the country when suspected terrorists are on the line. (Watch Gonzales defend the domestic spying program -- 2:22)

"Our enemy is listening," he said. "I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place." (Watch tough questioning -- 2:21)

In a long day of testimony, Gonzales argued that the 2001 resolution authorizing military action against the al Qaeda terrorist network and President Bush's "inherent constitutional authority" give Bush the authority for the program.

But the panel's chairman, Sen. Arlen Specter of Pennsylvania, said President Bush "doesn't have a blank check" to bypass a special court set up to approve secret wiretaps under the Foreign Intelligence Surveillance Act of 1978.

Specter said no "fair, realistic reading" of the 2001 resolution gives the administration the power to conduct electronic surveillance of people inside the United States without a warrant.

"There has been an express will of Congress to the contrary," Specter said. He urged the administration to submit its program to the federal court that oversees wiretap requests "lock, stock and barrel" for its review.

"Let them see the whole thing and let them pass judgment, because if they disagree with you, it's the equilibrium of our constitutional system that's involved," he said.

Leahy: Bush not 'above the law'

The committee's ranking Democrat, Sen. Patrick Leahy of Vermont, said Bush does not have "the power to decide what laws to ignore." (Watch Leahy's sharp questioning of Gonzales -- 1:45)

"Nobody is above the law -- not even the president of the United States," he said.

Sen. Lindsey Graham, a South Carolina Republican, questioned whether the administration's argument would make it more difficult for future presidents to get approval for military action.

Graham, a judge in the Air Force Reserve, said he "never envisioned" that his vote for the 2001 resolution would give Bush the authority to get around FISA.

But Gonzales said government agents "could lose access to valuable information" if they had to follow the process of obtaining a warrant, even though the 1978 law allows warrant applications to be made up to 72 hours after the fact.

Gonzales said critics of the program were misinformed. But he repeatedly refused to answer what he said were operational questions about the program, including how many wiretaps were involved and what checks were in place to prevent abuses.

Sen. Dianne Feinstein, a California Democrat, questioned whether the program is "much bigger and much broader than you want anyone to know."

Gonzales said the eight members of Congress who have been briefed on the program "know what's going on."

The Bush administration says it has consulted the members of Congress required by law -- the chairmen and ranking Democrats on the intelligence committees and the majority and minority leaders of each chamber.

But the nonpartisan Congressional Research Service issued an opinion in January that concluded that administration officials needed to consult the full committees.

Feingold: Gonzales misled Congress

Sen. Russ Feingold, a Wisconsin Democrat, accused Gonzales of misleading Congress during his 2005 confirmation hearings, when Feingold asked him whether the president could "authorize violations of the criminal law when there are duly enacted statutes, simply because he's commander in chief."

At the time, Gonzales called that a hypothetical situation and said, "It's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."

Monday, he said no laws were broken when Bush ordered the wiretapping program without court approval.

"I told the truth then. I'm telling the truth now," he said. "You asked about a hypothetical situation of the president of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred."

Feingold shot back that Gonzales "has taken mincing words to a new high."

"There's no question in my mind that when you answered the question that was a hypothetical you knew it was not a hypothetical -- and you were under oath at the time," he said.

The hearing began with a sharp partisan dispute when Specter ruled that Gonzales did not have to be sworn in to testify. Democrats demanded a role call vote on the issue, which Republicans won.

GOP support

Some Republicans, including Sen. John Cornyn of Texas, defended the program.

"It strikes me as odd to say that Congress authorized the commander in chief to capture, to detain, to kill, if necessary, al Qaeda, but we can't listen to their phone calls, and we can't gather intelligence to find out what they're doing so we can prevent future attacks against the American people," he said.

Sen. Jeff Sessions, an Alabama Republican, said the administration was not "going hog wild restraining American liberties."

Graham said he would rather use the hearings for "inquiry versus inquisition," focusing on what changes should be made to FISA under the circumstances.

But he said the power Bush has claimed could be used to "almost wipe out anything Congress wanted to do."

"I want a check and a balance," he said. "Here's why: Emotions run high in war. And we've put a lot of people in prison who just looked like the enemy and never did anything wrong."

Gonzales said he is confident the program is legal, but he said the administration is examining ways the court could be "more efficient and more effective in fighting the war on terror."

The hearing was interrupted at one point by a lone male protester who stood and said, "You have to have a warrant." Twice he yelled, "You are a fascist." He did not resist when a female officer removed him from the hearing.

Specter said he hoped to call former Attorney General John Ashcroft for a future hearing to get his views. When asked, Gonzales said he had no objections. Ashcroft is reported to have had some reservations about the program.

CNN's David Ensor and Terry Frieden contributed to this report.

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