WASHINGTON — Al-Qaida has had plenty of time to figure out how to avoid government prying into its communications with associates in the United States, says a congressman overseeing U.S. intelligence, and that probably means the eavesdropping is no longer effective.
"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?" asked Rep. Pete Hoekstra, R-Mich., the chairman of the House Intelligence Committee.
Although he defended the legality of the National Security Administration's eavesdropping, Hoekstra said Sunday, "The problem now is the program is really of questionable value."
Two weeks ago in his State of the Union address, President Bush said that the once top-secret program "remains essential to the security of America" despite its revelation Dec. 16 in The New York Times.
Since the article was published, legal scholars and lawmakers from both parties have questioned whether Bush had the authority to conduct the surveillance without a judge's approval. The Foreign Intelligence Surveillance Court is designed to grant warrants for such surveillance behind closed doors, but Bush gave the National Security Agency approval to monitor the communications without taking that step.
Hoekstra said that 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 House Intelligence Committee, said she didn't fully understand the legal underpinnings of the program at the time of the classified briefings and wasn't free to consult with experts. Since it 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," the California congresswoman said. "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 on NBC's "Meet the Press" 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 Senate Democratic leader Tom Daschle of South Dakota.
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 already had authority under the resolution authorizing him to take out al-Qaida passed on Sept. 15, 2001.
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.
On ABC's "This Week," Sen. Joseph Biden, D-Del., 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, Biden said. He said he supports Sen. Arlen Specter's proposal 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."