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2006-01-25

AG Gonzales’ Defense Of U.S. Domestic Spy Program Draws Protests and Criticism from Law Professors, Students

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On Tuesday, Attorney General Alberto Gonzales appeared at Georgetown Law School to deliver an address defending the NSA domestic spy programs. During the course of his address, nearly 30 students stood up one-by-one and turned their back on Gonzales in protest. A panel of law professors addressed Gonzales’ speech, calling it illegal. We play excerpts of Gonzales’ speech and law professor David Cole responding. [includes rush transcript]

During Gonzales’ speech, the protesting students stayed standing throughout the speech. Five students stood up and wore black hoods reminiscent of ones used at Abu Ghraib. The hooded students held a banner reading the words of Benjamin Franklin: "Those who would sacrifice liberties in the name of security deserve neither." Third-year law student Devon Chaffee, said later, "We believe that as law students, we must stand up for the rule of law over the creation of a culture of fear."

The Gonzales speech comes as part of a coordinated effort by the Bush administration to increase public support for the domestic surveillance program. Since Friday, President Bush, presidential adviser Karl Rove, former NSA head General Michael Hayden and Gonzales have all given major speeches. Today the president is scheduled to make a rare visit to the NSA headquarters in Fort Mead, Maryland.

Gonzales left immediately after his address without taking questions. The Georgetown Law School then hosted a panel to discuss the constitutionality of the spy program. One of the panelists was David Cole, law professor at Georgetown and author of several books including "Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security." We play excerpts of Gonzales’ speech and Cole’s response to Gonzales.

  • Alberto Gonzales, U.S. Attorney General, speaking Tuesday at the Georgetown Law School.
  • David Cole, law professor at Georgetown, one of the panelists responding to a speech made by Attorney General Gonzales at the Georgetown University Law Center.

Read articles by David Cole.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: In a few minutes, we’ll hear why law professor David Cole says the N.S.A. spying operation is clearly illegal. But first, we turn to Attorney General Alberto Gonzales.

ALBERTO GONZALES: Now, some contend that even if the President has constitutional authority to engage in the surveillance of our enemy in a time of war — and that’s what we’re talking about here — that that authority has been constrained by Congress with the passage in 1978 of the Foreign Intelligence Surveillance Act. As you know, generally FISA requires the government to obtain an order from a special FISA court before conducting electronic surveillance. Now, we do not have to decide whether, when we’re 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.

Now, you may have heard about the provision of FISA that allows the President to conduct warrant-less surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrant-less 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 days. 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. And 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 of 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.

Second, some people have argued that, by their terms, Title III and FISA are the exclusive means for conducting electronic surveillance. It is true that the law says that Title III and FISA are the exclusive means by which electronics surveillance may be conducted, but as I have said before, FISA itself says elsewhere that the government cannot engage in electronics 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. Even if some might think that that’s not the only way to read the statute, in accordance with long-recognized canons of construction, FISA must be interpreted in harmony with the force resolution to allow the President, as commander-in-chief during time of armed conflict, to take the actions necessary to protect the country from another catastrophic attack. And so long as such interpretation is fairly possible, the Supreme Court has made it clear that it must be adopted in order to avoid the serious constitutional issues that would otherwise be raised.

Third, I keep hearing, "Why not FISA? Why didn’t the President get orders from the FISA court approving these N.S.A. intercepts of al-Qaeda communications?" We have to remember that we’re talking about a wartime foreign intelligence program. It is an early warning system with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security reasons that we can detect reliably, immediately, and without delay whenever communications associated with al-Qaeda enter or leave the United States.

Now, some have pointed to the provision in FISA that allows for so-called emergency authorizations of surveillance for 72 hours without a court order. I think that there is 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 me, 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. And that review process itself can take precious time.

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 signoff of lawyers at the N.S.A. 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 then we would have to be prepared to follow up with a full FISA application within the 72 hours.

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the war on terror and one that we are using to its fullest and will continue to use against al-Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the N.S.A. requires a maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack, and we cannot afford to fail.

AMY GOODMAN: Attorney General Alberto Gonzales speaking at Georgetown University Law Center yesterday. Gonzales left immediately after his talk without taking questions. Protesters followed. Also, panelists responded to what the Attorney General had to say. One of the panelists was David Cole, law professor at Georgetown and author of several books including Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security.

DAVID COLE: FISA, the Foreign Intelligence Surveillance Act, was enacted by Congress in 1978 after revelations of rampant wiretapping and surveillance on Americans in the name of national security. And there was the Church Committee held extensive hearings and wrote an extensive report, criticizing this practice and calling for reforms. FISA was one such reform.

It regulates electronic surveillance for foreign intelligence and national security purposes. It permits such surveillance, but with minor exceptions not invoked by the Department of Justice, it requires a warrant from a FISA court. To get such a warrant, you don’t have to show probable cause of a crime, you just have to show probable cause that the person you’re targeting is a member of a terrorist organization. So if, in fact, that’s all they were targeting, they could have gone through the FISA courts. They didn’t.

Congress, in FISA, specifically said that FISA and the Title III, which governs ordinary criminal wiretaps, are the exclusive means for any wiretapping by officials within the United States. They are the exclusive means. That means the only means. Congress also said it’s a crime to conduct electronic surveillance without statutory authorization in two places: in 50 USC Section 1809 and in 18 USC Section 2511. Both of those statutes, I think, the President violated.

And finally, and most importantly, Congress specifically contemplated the exact question addressed today; that is, authorization for wiretapping during wartime. Section 1811 in FISA is entitled "Authorization During Time of War." So this is not some un-contemplated issue; Congress specifically addressed it. And what they said was when we’ve declared war, the President can conduct warrant-less wiretapping, but only for 15 days. And they said in the legislative history, this is so if the President needs further authority, he can come to us and ask for that authority. The President didn’t do that here. He simply went ahead and did it without asking for their authority.

Now, the D.O.J.'s argument, and repeated here by the Attorney General, is that the AUMF, the authorization to use military force, somehow implicitly overrides all of this and authorizes the President to conduct warrant-less wiretapping. There's several problems with that argument. First, the authorization says nothing about warrant-less wiretapping. Second, as I’ve indicated, Section 1811 of the Foreign Intelligence Surveillance Act specifically addresses discretion of warrant-less wiretapping and says 15 days and no further. And that provision applies when Congress has declared war, the most serious and grave act Congress can do. Here Congress only authorized the use of military force. So if Congress said a declaration of war only gives you 15 days, how can it be that an authorization to use military force somehow gives him four years and more of unchecked power?

In addition, when Attorney General Gonzales was asked by reporters why he didn’t go to Congress and ask for additional authority, he said, 'Well, we talked to some members of Congress, and they said it would be difficult, if not impossible, to get that additional authority.' So how can you argue on the one hand, Congress gave us the authority, but on the other hand, we didn’t go to Congress to ask for the authority because if we did, it would be difficult, if not impossible, to get it?

Now, when you’re a law student, they tell you if you can’t argue the law, argue the facts. They also say if you can’t argue the facts, argue the law. If you can’t argue either, apparently, the solution is to go on a public relations offensive and make it a political issue, because that’s what the Bush administration has done here, sort of taking the pulpit, through the President, through the Attorney General, through Michael Hayden, through the Vice President, to say over and over and over again, it’s lawful, as if the American people will somehow come to believe this if we say it often enough.

And I think in light of that, the sort of clearly blatantly political nature of this, I’m proud of the very civil civil disobedience that was shown here today to express the opposite political view. Now, David Brooks, in commenting on the Alito hearings which discussed these issues, said, 'Anytime the Democrats are seen talking about law, and the Republicans are seen to be talking about national security, that's a winner for the Republicans.’ And that may be true as a political matter. In fact, Karl Rove said exactly the same thing just last week, that there’s a political gain here that they see by invoking fear and national security over law.

But that’s precisely why we have law in the first place. It’s in recognition that political pressures will push government officials toward violation of rights and towards accretion of government power. This administration has taken the view — in this case; in the torture case; in the cruel, inhuman and degrading treatment issue — that it can literally override the law and violate criminal statutes. Now, it’s on a political campaign to entrench that power. What’s at stake here is whether we are a government of laws, rather than a government of men.

AMY GOODMAN: David Cole, law professor at Georgetown, one of the panelists responding to the speech made by Attorney General Alberto Gonzales at Georgetown University Law Center yesterday. President Bush heads to the National Security Agency today in the weeklong Bush administration campaign that could be called, "Why We Spy."

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