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1/24. Attorney General
Alberto Gonzales gave a
speech in
Washington DC regarding the National Security Agency's
(NSA) extrajudicial electronic surveillance of communications where one party is within
the U.S. and the other is without the U.S.
 Gonzales (at right)
began by stating that the terrorist attacks of September 11, 2001 form the "backdrop
to the current debate about the National Security Agency's terrorist surveillance
program."
He described this NSA program as "focused on international communications
where experienced intelligence experts have reason to believe that at least one
party to the communication is a member or agent of al Qaeda or a terrorist
organization affiliated with al Qaeda."
He also said that "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 wrong."
Thus, instead of discussing the nature of the program, Gonzales focused on
the legal authority to run this program.
Constitutional Powers of the President. First, he argued briefly that it
"is firmly grounded in the President's constitutional authorities".
He elaborated that "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."
Although, he cited no judicial precedent for this in this speech.
Congressional War Resolution. Second, he argued that authority "comes
directly from Congress as well", from the September 2001 Congressional joint
resolution titled "Authorization for Use of Military Force". See,
SJRes 23
(107th Congress), and President Bush's September 18, 2001
signing statement.
He continued that "Congress did two important things. First, it expressly
recognized the President's ``authority under the Constitution to take action to
deter and prevent acts of international terrorism against the United States.´´
Second, it supplemented that authority by authorizing the President to, quote,
``use all necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the terrorist
attacks´´ in order to prevent further attacks on the United States. The
Resolution means that the President’s authority to use military force against
those terrorist groups is at its maximum because he is acting with the express
authorization of Congress."
He added that "were we to employ the three-part framework of Justice Jackson's
concurring opinion in the Youngstown Steel Seizure case, the President's authority falls
within Category One, and is at its highest. He is acting ``pursuant to an express or
implied authorization of Congress,´´ and the President's authority ``includes all that
he possesses in his own right [under the Constitution] plus all that Congress can´´
confer on him." (Brackets in original.)
This is the 1952 case
Youngstown Sheet & Tube, Co. v. Sawyer, which is reported at 343 U.S. 579.
This was not a surveillance case. It pertained to seizure of steel mills by the
President. It involved a draconic form of economic regulation, undertaken on the
pretext that fighting a war in Korea enhanced the President's authority with
respect to domestic economic activity. The Supreme Court held that the President lacks
this authority. It was a 6-3 split, with a fractured majority. Justice Hugo
Black wrote the opinion of the Court. Justice Robert Jackson, whose
concurring opinion Gonzales now cites, was joined by no other Justice.
Jackson also wrote that "There are indications that the Constitution did not
contemplate that the title Commander in Chief of the Army and Navy will
constitute him also Commander in Chief of the country, its industries and its
inhabitants." (See, 343 U.S. 643-4.)
Former Chief Justice William Rehnquist was a law clerk of Justice Jackson at
the time. Rehnquist wrote 58 pages on this case in his book titled
The Supreme Court: How It Was: How It Is [Amazon]. See, Chapter 2, titled "The Steel
Seizure Case in the Lower Courts" and Chapter 3, titled "The Steel Seizure Case
in the Supreme Court".
Gonzales also cited the 2004
opinion
of the Supreme Court in Hamdi v. Rumsfeld, which is reported 542 U.S.
507. The case involved the President's authority to detain an American citizen
as an enemy combatant.
Gonzales stated that the Supreme Court "confirmed that the expansive language
of the Resolution -- ``all necessary and appropriate force´´ -- ensures that the
congressional authorization extends to traditional incidents of waging war. And,
just like the detention of enemy combatants approved in Hamdi, the use of
communications intelligence to prevent enemy attacks is a fundamental and
well-accepted incident of military force."
History of Surveillance. Third, Gonzales argued that history supports
the NSA program. Basically, he argued communications between parties within and without
the U.S. have been intercepted, without court orders, since the war for independence
from Britain.
He said that "This Nation has a long tradition of wartime enemy surveillance
-- a tradition that can be traced to George Washington, who made frequent and
effective use of secret intelligence, including the interception of mail between
the British and Americans. And for as 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."
Gonzales conceded that the war resolution "does not expressly mention
surveillance", but argued that "Congress made no attempt to catalog every aspect
of the use of force it was authorizing". Instead, Gonzales argued that
"following the model of past military force authorizations, Congress -- in
general, but broad, terms -- confirmed the President’s authority to use all
traditional and legitimate incidents of military force to identify and defeat
the enemy. In doing so, Congress must be understood to have intended that the
use of electronic surveillance against the enemy is a fundamental component of
military operations."
FISA and Title III. Gonzales next rejected the argument that the 1978
Foreign Intelligence Surveillance Act (FISA), as amended, precludes operation of
this NSA program.
He mentioned first that "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."
He also stated that in 1978 "there were concerns among Members of Congress
about the constitutionality of FISA itself".
However, he did not assert its unconstitutionality in this speech. Rather, he
said that "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."
Gonzales also rejected the argument that Title III and FISA together are the
sole means for conducting electronic surveillance. He said that "It is true that
the law says that Title III and FISA are ``the exclusive means by which
electronic surveillance . . . may be conducted.´´ But, as I have said before,
FISA itself says elsewhere that the government cannot engage in electronic
surveillance ``except as authorized by statute." It is noteworthy that, FISA did
not say ``the government cannot engage in electronic surveillance `except as
authorized by FISA and Title III.´ ´´ No, it said, except as authorized by
statute -- any statute. And, in this case, that other statute is the Force
Resolution."
Title III is a reference to wiretap authority under Title III of the Omnibus
Crime Control and Safe Streets Act of 1968.
He also argued that the provisions in the FISA that provide for emergency
authorizations, as a practical matter, are inadequate, because they too involve
time consuming preparations and procedures.
4th Amendment. Finally, Gonzales argued that the 4th Amendment does
not preclude the NSA program.
It provides that "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized."
He said that "The Fourth Amendment has never been understood to require
warrants in all circumstances. For instance, before you get on an airplane, or
enter most government buildings, you and your belongings may be searched without
a warrant. There are also searches at the border or when you’ve been pulled over
at a checkpoint designed to identify folks driving while under the influence.
Those searches do not violate the Fourth Amendment because they involve ``special
needs´´ beyond routine law enforcement. The Supreme Court has repeatedly held
that these circumstances make such a search reasonable even without a warrant.
The terrorist surveillance program is subject to the checks of the Fourth
Amendment, and it clearly fits within this ``special needs´´ category."
Also on January 24, the White House press office issued a
release
titled "Setting the Record Straight: Charges Of ``Domestic Spying´´".
ACLU Reaction. Anthony Romero, the ACLU's Executive Director, responded in a
release that
"President Bush and Attorney General Gonzales can manufacture all of the legal
justifications they want, but the facts and laws show that this warrantless
surveillance violates the First and Fourth Amendment and the Foreign
Intelligence Surveillance Act."
He added that "Any opinion coming from the Justice Department has to be viewed
with a healthy dose of skepticism, given Attorney General Gonzales’ involvement in the
warrantless spying as White House counsel. The fox may now be guarding the
henhouse, which is why we need an independent special counsel."
Romero also called for Congressional hearings.
The Senate Judiciary Committee (SJC) has
scheduled a hearing for February 6 titled "Wartime Executive Power and the NSA’s
Surveillance Authority". Gonzales is scheduled to testify.
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