2006-01-24 20:21:12 UTC
Gonzales Crushes Arguments Against NSA's International Surveillance
This morning, Attorney General Alberto Gonzales participated in a debate at
Georgetown University's law school on the NSA's international surveillance
program. Gonzales did an excellent job of spelling out the reasons why the
program is not only necessary, but legal. You can read Gonzales' prepared
text here; what follows are some key excerpts:
A word of caution here. This remains a highly classified program. It
remains an important tool in protecting America. So my remarks today speak
only to those activities confirmed publicly by the President, and not to
other purported activities described in press reports. These press accounts
are in almost every case, in one way or another, misinformed, confusing, or
No surprise there.
I've noticed that through all of the noise on this topic, very few have
asked that the terrorist surveillance program be stopped. The American
people are, however, asking two important questions: Is this program
necessary? And is it lawful? The answer to each is yes.
An important point: very few of the progam's liberal critics are actually
willing to take responsibility for calling for the termination of the NSA
international surveillance program. They know what would happen if the
program were in fact terminated, and an attack ensued.
The conflict against al Qaeda is, in fundamental respects, a war of
information. We cannot build walls thick enough, fences high enough, or
systems strong enough to keep our enemies out of our open and welcoming
country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we
must understand better who they are and what they're doing - we have to
collect more dots, if you will, before we can "connect the dots." This
program to surveil al Qaeda is a necessary weapon as we fight to detect and
prevent another attack before it happens.
Didn't that "collect the dots" theme originate on the internet? I think so.
[F]rom the outset, the Justice Department thoroughly examined this program
against al Qaeda, and concluded that the President is acting within his
power in authorizing it. These activities are lawful. The Justice Department
is not alone in reaching that conclusion. Career lawyers at the NSA and the
NSA's Inspector General have been intimately involved in reviewing the
program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President's
constitutional authorities. *** It has long been recognized that the
President's constitutional powers include the authority to conduct
warrantless surveillance aimed at detecting and preventing armed attacks on
the United States. Presidents have uniformly relied on their inherent power
to gather foreign intelligence for reasons both diplomatic and military, and
the federal courts have consistently upheld this longstanding practice.
If this is the case in ordinary times, it is even more so in the present
circumstances of our armed conflict with al Qaeda and its allies.
As I've said many times, I think this is the key point that must be made
again and again. It is supported by at least five federal appellate court
decisions. How many such decisions are there on the other side? Zero.
The President's authority to take military action-including the use of
communications intelligence targeted at the enemy-does not come merely from
his inherent constitutional powers. It comes directly from Congress as well.
He goes on to discuss the Authorization for the Use of Military Force and
the Hamdi decision. Most of that discussion is good, but he stumbles by
referring to Justice Jackson's confused concurrence in the Youngstown steel
mill seizure case. When I have time, I'm going to write a fuller explanation
of why Jackson's tripartite theory is not just unhelpful, but wrong.
Gonzales supplies some historical perspective:
[A]s long as electronic communications have existed, the United States has
conducted surveillance of those communications during wartime-all without
judicial warrant. In the Civil War, for example, telegraph wiretapping was
common, and provided important intelligence for both sides. In World War I,
President Wilson ordered the interception of all cable communications
between the United States and Europe; he inferred the authority to do so
from the Constitution and from a general congressional authorization to use
military force that did not mention anything about such surveillance. So too
in World War II; the day after the attack on Pearl Harbor, President
Roosevelt authorized the interception of all communications traffic into and
out of the United States. The terrorist surveillance program, of course, is
far more focused, since it involves only the interception of international
communications that are linked to al Qaeda or its allies.
Gonzales continues with the best discussion of FISA I've seen by an
Some contend that even if the President has constitutional authority to
engage in the surveillance of our enemy in a time of war, that authority has
been constrained by Congress with the passage in 1978 of the Foreign
Intelligence Surveillance Act. *** For purposes of this discussion, because
I cannot discuss operational details, I'm going to assume here that
intercepts of al Qaeda communications under the terrorist surveillance
program fall within the definition of "electronic surveillance" in FISA.
Interesting. As I've said before, I assume that this must be true, or else
the administration would make the point that FISA has no application to the
international surveillance in question. Even saying that much, however,
could tip the terrorists off as to what categories of communications are
being intercepted and whether the NSA is using facilities located abroad or
in the U.S., distinctions on which FISA's definition of "electronic
surveillance" can turn.
The FISA Court of Review, the special court of appeals charged with
hearing appeals of decisions by the FISA court, stated in 2002 that, quote,
"[w]e take for granted that the President does have that [inherent]
authority" and, "assuming that is so, FISA could not encroach on the
President's constitutional power." We do not have to decide whether, when we
are at war and there is a vital need for the terrorist surveillance program,
FISA unconstitutionally encroaches - or places an unconstitutional
constraint upon - the President's Article II powers. We can avoid that tough
question because Congress gave the President the Force Resolution, and that
statute removes any possible tension between what Congress said in 1978 in
FISA and the President's constitutional authority today.
I agree with that last point, but I also think it is vital to insist that
Congress has no power to restrict the President's constitutional authority,
any more than the President can detract from Congress's constitutional
powers by issuing an executive order.
Gonzales makes several cogent points about FISA; I haven't seen this one
You may have heard about the provision of FISA that allows the President
to conduct warrantless surveillance for 15 days following a declaration of
war. That provision shows that Congress knew that warrantless surveillance
would be essential in wartime. But no one could reasonably suggest that all
such critical military surveillance in a time of war would end after only 15
Instead, the legislative history of this provision makes it clear that
Congress elected NOT TO DECIDE how surveillance might need to be conducted
in the event of a particular armed conflict. Congress expected that it would
revisit the issue in light of events and likely would enact a special
authorization during that 15-day period. That is exactly what happened three
days after the attacks of 9/11, when Congress passed the Force Resolution,
permitting the President to exercise "all necessary and appropriate"
incidents of military force.
Thus, it is simply not the case that Congress in 1978 anticipated all the
ways that the President might need to act in times of armed conflict to
protect the United States. FISA, by its own terms, was not intended to be
the last word on these critical issues.
Gonzales makes the familiar argument that the Authorization for the Use of
Military Force constitutes an "authoriz[ation] by statute" that makes the
current wartime surveillance an exception to FISA. He goes on to address the
72-hour emergency provision of FISA, on which leftists have put so much
Some have pointed to the provision in FISA that allows for so-called
"emergency authorizations" of surveillance for 72 hours without a court
order. There's a serious misconception about these emergency authorizations.
People should know that we do not approve emergency authorizations without
knowing that we will receive court approval within 72 hours. FISA requires
the Attorney General to determine IN ADVANCE that a FISA application for
that particular intercept will be fully supported and will be approved by
the court before an emergency authorization may be granted. That review
process can take precious time.
Thus, to initiate surveillance under a FISA emergency authorization, it is
not enough to rely on the best judgment of our intelligence officers alone.
Those intelligence officers would have to get the sign-off of lawyers at the
NSA that all provisions of FISA have been satisfied, then lawyers in the
Department of Justice would have to be similarly satisfied, and finally as
Attorney General, I would have to be satisfied that the search meets the
requirements of FISA. And we would have to be prepared to follow up with a
full FISA application within the 72 hours.
A typical FISA application involves a substantial process in its own
right: The work of several lawyers; the preparation of a legal brief and
supporting declarations; the approval of a Cabinet-level officer; a
certification from the National Security Adviser, the Director of the FBI,
or another designated Senate-confirmed officer; and, finally, of course, the
approval of an Article III judge.
So the FISA "emergency" process would require days, at a minimum, and
perhaps weeks, to complete; and it must be completed before surveillance can
begin. Thinking about this reminded me of the fact that the NSA actually
picked up two electronic communications on September 10, 2001, which
countless liberal web sites have pointed to as evidence of malfeasance or
worse on the part of the administration. Here is how General Michael Hayden
described those two intercepts in his testimony before the Senate
There is one other area in our pre-September 11th performance that has
attracted a great deal of public attention. In the hours just prior to the
attacks, NSA did obtain two pieces of information suggesting that
individuals with terrorist connections believed something significant would
happen on September 11th. This information did not specifically indicate an
attack would take place on that day. It did not contain any details on the
time, place, or nature of what might happen. It also contained no suggestion
of airplanes being used as weapons. Because of the processing involved, we
were unable to report the information until September 12th.
Now, consider this. What would happen if the President had not authorized
the international surveillance program after September 11, and instead had
relied solely on FISA, and the following events were to take place: the NSA
obtains information that an al Qaeda operative overseas is planning a
nuclear attack in conjunction with a cell inside the United States. The NSA
decides to intercept all communications between the overseas al Qaeda
operative and individuals located inside the U.S.; but first, it must obtain
multiple layers of approval from lawyers and assemble all of the information
needed to complete a FISA application. It begins that process, but the next
day, while NSA is still working on getting the necessary approvals, a
nuclear device levels much of Washington, D.C.
Suppose that disaster had happened a year ago. How do you think the
surviving Democrats would have responded? Do you think they would have
praised the administration for refusing to go outside the bounds of FISA's
procedures? Or do you think they would have denounced President Bush and his
administration as the most irresponsible, feckless and ineffective officials
to control the executive branch since James Buchanan?
I think the latter. And you know what? They would have had a point.