The House Intelligence Committee chairman Sunday said President Bush’s secret eavesdropping program on Americans is useless because al-Qaida undoubtedly has changed its means of communication to avoid Washington’s monitoring.
Bush said two weeks ago in his State of the Union address that the program of monitoring calls and e-mail between the United States and suspected terrorist associates overseas "remains essential to the security of America." But Rep. Pete Hoekstra, R-Mich., suggested that the public disclosure of the program’s existence in December in the New York Times has undermined its effectiveness.
"Does anyone really believe that, after 50 days of having this program on the front page of our newspapers, across talk shows across America, that al-Qaida has not changed the way that it communicates?" Hoekstra said on NBC’s "Meet the Press."
Since that disclosure, legal scholars and lawmakers from both parties have questioned whether Bush had the authority to conduct the surveillance without a judge’s approval.
By law, a secret court, the Foreign Intelligence Surveillance Court, is designed to grant warrants for such surveillance. Bush gave the National Security Agency approval to monitor the communications without taking that step.
Hoekstra defended the program’s legal standing. He said if Democrats who were briefed on the program before it became public thought the president was breaking the law, they should have tried to stop him.
"If I came out of that briefing and believed that the president was violating the law, I would have gone to the speaker and said, `Mr. Speaker, the president’s violating the law,’" Hoekstra said. "`You and I need to go see the president and talk to him and get this issue resolved do it now.’"
Rep. Jane Harman, the leading Democrat on the Intelligence Committee, said she did not fully understand the legal underpinnings of the program at the time of the classified briefings and was not free to consult with experts.
Since the monitoring has become public, she has argued that the president broke the law by failing to consult all the members of the intelligence committees, instead of just the leaders.
"Remember, we go into those briefings alone," said Harman, D-Calif. "We have no ability to consult staff. We have no ability to consult constitutional experts or legal experts on the history of FISA. Since the program has been disclosed, I think all of us, or at least I, have become a lot smarter about all of that."
Hoekstra and Harman appeared with two others who were among the few leading lawmakers to be briefed on the program before it became public: Senate Intelligence Committee Chairman Pat Roberts, R-Kan. and former Sen. Tom Daschle of South Dakota, who was the Senate Democratic leader.
The two Republicans _ Hoekstra and Roberts _ said Congress does not need to pass further legislation granting specific authority to conduct the eavesdropping because the president had authority under the resolution that lawmakers passed four days after the attacks of Sept. 11, 2001, that authorizing him to take on al-Qaida.
Both Democrats _ Harman and Daschle _ said they think the program is valuable and should continue, but said the law should be changed to allow it.
Meantime, Sen. Joseph Biden, a member of the Senate Judiciary Committee, said the eavesdropping program should not continue "unabated without any review."
The intelligence committees of Congress should demand to know, in secret session, what the administration is doing, said Biden, D-Del. He said he supports a proposal by the committee chairman, GOP Sen. Arlen Specter of Pennsylvania, to have the FISA court review the eavesdropping program and decide whether it is legal.
"We cannot say to a president, ‘Mr. President, whatever you want to do, under any circumstances, tap anything, and you don’t even have to tell us what you’re doing.’ That is bizarre," Biden told ABC’s "This Week."