Gonzales Says Congress Authorized Spying

Attorney General Alberto Gonzales argued today that Congress gave the president implicit authority to conduct domestic surveillance as part of its broad package passed in the wake of the 9/11 attacks.

Gonzales Says Congress Authorized Spying

Responding to a congressional uproar, the Bush administration said Monday that a secret domestic surveillance program had yielded intelligence results that would not have been available otherwise in the war on terror. With Democrats and Republicans alike questioning whether President Bush had the legal authority to approve the program, Attorney General Alberto Gonzales argued that Congress had essentially given Bush broad powers to order the domestic surveillance after the Sept. 11, 2001 attacks. “Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority,” said Gonzales. He called the monitoring “probably the most classified program that exists in the United States government.”

At a White House briefing and in a round of television appearances, Gonzales provided a more detailed legal rationale for Bush’s decision authorizing the National Security Agency to eavesdrop on international phone calls and e-mails of people within the United States without seeking warrants from courts. He said Bush’s authorization requires that at least one of the parties be outside the country and linked to al-Qaida or an affiliated organization. But he refused to say how many Americans had been targeted and insisted the eavesdropping was “very limited, targeted” electronic surveillance. “This is not a situation of domestic spying,” he said. Gonzales defended Bush’s decision not to seek warrants from the secretive Federal Intelligence Surveillance Court, saying that “we don’t have the speed and the agility that we need in all circumstances to deal with this new kind of enemy.”

Gen. Michael Hayden, deputy national intelligence director who was head of the NSA when the program began in October 2001, said, “I can say unequivocally we have got information through this program that would not otherwise have been available.” In offering only a glimpse into the program, Hayden said the monitoring would take place for a shorter period of time and be less intrusive than what is normally authorized by the secret surveillance court. Yet he acknowledged that the program is more aggressive than other government monitoring.

It is certainly not unusual for the executive to broadly interpret its powers, especially in the national security arena. Further, the September 14, 2001 “Authorization for Use of Military Force,” was indeed rather sweeping:

IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The preample to that granting of power includes a long list of justifying whereas’s, including:

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

Given this language, and the long history of the Supreme Court defering to the executive branch in wartime, Gonzales’ argument is not unreasonable. Indeed, as Hugh Hewitt points out, there is definitely precedent for the president having inherent Constitutional authority to order surveillance for national security purposes even apart from any congressional delegation.

What remains to be explained, though, is why the administration didn’t simply authorize the searches on an emergency basis and then immediately apply for FISA court approval after the fact, as allowed by the Act. There may be a perfectly reasonable explanation for this but, so far as I can determine, it hasn’t been offered yet. It may have something to do with this being “the most classified program that exists in the United States government,” which is also not something I understand given the little I know about the program from press accounts and adminstration pronouncements to date.

Update: The Boston Globe’s Charlie Savage offers a dissenting view.

Past Rulings Don’t Support Bush’s Use Of War Powers

[P]ast Supreme Court rulings have taken a more limited view of presidential power in wartime. ”The president is taking an unusually expansive view of what the Constitution allows him to do in disregard of Congress, and he is probably wrong,” said Susan Low Bloch, a professor of constitutional law at Georgetown University. ”His claim of power is too extreme.”

The court laid out the limits of presidential power during wartime in a 1952 case stemming from former President Harry Truman’s decision to seize a steel mill in order to avert a strike at the plant. Fearing that a shortage of steel would hamper the Korean War effort, Truman decided to stop the strike. Although Congress had empowered him to keep the mill running by imposing a ”cooling off” period in labor negotiations, Truman chose to take more drastic action. Truman declared that the government would take control of the mill to ensure a steady supply of steel. But the court rejected Truman’s claim that his powers as commander in chief allowed him to go beyond the will of Congress. ”When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” wrote Justice Robert Jackson in a much-cited concurring opinion.

[…]

In a 2004 case, Bush cited both his authority as commander in chief and the congressional authorization to support his claim that US citizens could be imprisoned without a trial if they were suspected to be part of a terrorist network. But the court rejected Bush’s assertion, ruling that the detainees were entitled to a fair hearing. ”A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” wrote Justice Sandra Day O’Connor.

That’s certainly true. On the other hand, the Court has held that presidents have emergency war powers going back to the days of Abraham Lincoln. Ordering involuntary servitude in steel mills and holding citizens without due process are certainly far more extreme measures than eavesdropping on people having conversations with known terrorists in other countries.

The warmaking power is divided between the executive and legislative branches in language that is sufficiently murky and overlapping as to have created “an invitation to struggle.” Whether the courts ultimately uphold the president’s interpretation in this matter, the assertion of power is not unreasonable.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. RA says:

    It is high time that we keep an eye on the fifth column and those who empower and protct the fifth column (ACLU, most Democrats and a few RINO’s).

    It is also time we send Harry Reid on a permenant vacation to France where his anti-American activities will be better appreciated.

  2. Quick Hits

    What with Christmas prep, stuff I need to get done while I have “time off”, and the flu, I feel I have been remiss in address some major issues.
    First off: the NSA business. My initial reaction is that I am quite concerned by the situati…

  3. legion says:

    Frankly, the President’s comments defending this practice are utter crap. The power to do what he wanted to do exists plainly in the law already via the FISA system. It approves classified wiretaps on a regular basis. More than that, there’s an explicit section dealing with _retroactive_ warrants… if you have something so critical the tap has to happen _now_, without waiting for a warrant, yuo can do it and then go back after the fact to legitimize the tap (and the information gained) with a warrant.

    This is so a) there is still oversight, even in the most urgent national security cases, and b) to legitimize the info so it can be used in court cases against the suspects.

    I would note here that in the 3 dozen+ instances Bush personally authorized, none of them, _not one_ was ever taken back for a retroactive warrant. Bush literally thumbed his nose at existing law and said “I don’t have to”.

    AG Gonzalez says it’s cool under the Authorization Act, but at least some members of Congress don’t seem to agree. And as for the broad interpretation (and this is something I wasn;t even aware of until this morning), there’s a strong legal opinion that the various clauses in Congressional authorizations involving the word “whereas” don’t actually have any binding legal standing (http://judiciary.senate.gov/testimony.cfm?id=225&wit_id=434)… and while I didn’t know that, it’s simply not believable that Gonzalez & the DoJ didn’t.

  4. Anderson says:

    I do not understand this post at all.

    How does the use of “force” equate to authorizing domestic wiretapping?

    Show me a single opinion of any federal appellate court that has held any authority for the “use of force” to justify wiretapping.

    It appears that, in addition to adopting Soviet methods in our detention camps, we’re now emulating Soviet jurisprudence?

    Remind me again who won the Cold War?

  5. ken says:

    Gonzales is the same guy who told Bush that it was ok for him to utilize torture. He is just another conservative who is waging war on America.

  6. Anderson says:

    Note btw how easily RA leaps to presidential authorization to wiretap “most Democrats” and some RINO’s. Evidently, if it turned out that Bush had people listening in on John McCain’s phone calls or intercepting Nancy Pelosi’s faxes, that would be okay.

    How many voters is he typical of? 10%? 20%? How many Americans are okay with a Republican dictatorship?

  7. Domestic Spying

    Since this is ultimately a political issue Bush bashers will have a problem. They can’t argue the government has no…

  8. Lorrie says:

    There may be a perfectly reasonable explanation for this but, so far as I can determine, it hasn’t been offered yet.

    Bush gave his explanation last night–he maintains that he doesn’t have to follow the rule of law.

  9. odograph says:

    I think Bush and his crew were so full of themselves a couple years ago that they ran amok. We’ve already entered a future they did not comprehend.

  10. spencer says:

    If you read the NYT article, the people most concerned with this were the senior NSA officials — many of them career military –charged with doing the spying.

    They “leaked” the info because they believed the administration was breaking the law.

    I seems to be similiar to the point that the individuals most concerned with the administration policy on torture were the military lawyers.

    But of course I read comments blaming this on the Democrats who had nothing to do with the information being made public.

    Of course, leaking that the administration is
    breaking the law is bad, but leaking to punish a political opponent — the Plame case — is OK. Right?

  11. Anderson says:

    Apropos of an earlier thread where Robert Prather & I were discussing case law, here’s a comment written for that older thread but placed here:

    A comment at Volokhia had the 1972 case that Mr. Prather appears to be thinking of, United States v. United States District Court, 407 U.S. 297 (1972). The title says it all, don’t it?

    The case is not helpful, that I can see, to the President. For example:

    The Government relies on s 2511(3). It argues that ‘in excepting national security surveillances from the Act’s warrant requirement Congress recognized the President’s authority to conduct such surveillances without prior judicial approval.’ Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.

    We think the language of s 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that: ‘Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . .’ Against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers–among other things–to protection ‘against actual or potential attack or other hostile acts of a foreign power.’ But so far as the use of the President’s electronic surveillance power is concerned, the language is essentially neutral.

    Plainly, then, we’re not going to get from the “whereas” language in the “use of force” authorization, to wiretapping.

    There is some language suggesting that the case might not’ve been so open-and-shut were foreign powers involved, but then, the case predates FISA with its detailed statutory scheme for handling just such.

    See this graf for ex:

    These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359–360, 88 S.Ct. at 515–516 (Douglas, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

    In other words, the Founders wrote the Fourth Amendment not to preserve untrammelled executive power, but because they’d had all to much experience of it.

    Read the whole case—many passages sound like they came out of today’s news:

    The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions.

    Sounds very familiar. The Court was not impressed:

    Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of ‘ordinary crime.’ If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

    By the end of the op, the Court basically calls for Congress to enact FISA. Much good that it did.

  12. Bithead says:

    James, just for reference;

    When Congress authorized force against Iraq with SJR23 they were “declaring war.” So ruled the US Court of Appeals

    (Careful, it’s a PDF.)

    Changes the complexion of the argument a bit, I think.

  13. James Joyner says:

    Anderson,

    Good discussion of the case. My take–and I could be wrong–is that the difference comes down to the very first sentence of the case:

    “The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property.”

    Thus, we have a criminal case and the defendants are saying that evidence obtained without a warrant should be squelched and the government is saying, “No, no, this is about security.” The Court, correctly, ruled that defendants’ rights trump the government need to punish criminals.

    In the NSA case, though, the government is gathering information to stop terrorist acts not to try those caught in court. I fully acknowledge that the evidence would be inadmissible against U.S. citizens if there was no warrant.

    Remember, virtually all (perhaps all but I don’t have that degree of expertise in ConLaw) 4th Amendment cases are about the admissibility of evidence.

  14. James Joyner says:

    Bithead: I’ve argued previously that it was, for all intents and purposes, a declaration of war. The 1st Circuit ruling you cite, though, sidesteps that question through a rather odd interpretation of ripeness doctrine.

  15. Gonzales Defends Domestic Spying

    Attorney General Alberto Gonzales said President Bush has the authority to conduct “very limited” su

  16. legion says:

    James,
    I think you hit the nail on the head with this:

    In the NSA case, though, the government is gathering information to stop terrorist acts not to try those caught in court.

    The only reason to go back to FISA to get a retroactive warrant is to make the evidence gathered ‘legitimate’ in the eyes of a court. If there is no intent (or, in the case of foreign nationals, ability) to arrest & try, there is no need for ‘court-worthy’ evidence.

    But this still means that any US citizens implicated will eventually walk off scott-free, which still makes this a less-than-well-thought-out policy, IMHO…

  17. Herb says:

    I guess we made a big mistake during the last Presidential Election. Rather than have Bush and Kerry as candidates, the American people should have demandad that Anderson be our next President because he is so intelligent and knows everything. Anderson could have Ken as his running mate as Vice President because he could be the Propoganda chief. The position of Secretary of State would be a toss up between Spencer and Odo because they are puppets and will jump when their string is pulled. And somewhere, Legion could be something, possibly Sec of Defence, Because he is always defending the liveral views.

    With guys like this running our government we would have nothing to fear from our enemines.

    Or FDR,s famous words “We have nothing to fear but fear itself”.

    Gods, just imagine these guys running things, they are “fear itself”.

  18. Anderson says:

    Thanks for the endorsement, Herb!

  19. anjin-san says:

    Well Anderson has shown he can form complet sentences, which pretty much proves him to be the intellectual superior of the current President.