Gonzales Defends Eavesdropping Program
Yet more bullshit from the Bullshit Administration. How long until Americans (if there really are any left) wake up?
By Fred Barbash and Peter Baker
Attorney General Alberto Gonzales this morning defended the administration’s domestic eavesdropping operation, saying it derived its legality from the congressional resolution permitting the use of force to fight terrorism as well as from the “inherent powers” of the president as commander-in-chief.
He acknowledged that such eavesdropping would be illegal under the Foreign Intelligence Surveillance Act. But that act, he said, makes an exception for eavesdropping when “otherwise authorized” by statute. That authorizing statute, he argued, was the 2001 resolution, known as the “Authorization to use Military Force.”
That resolution makes no reference to eavesdropping or of detention policies. The administration has cited it in justification of both, however.
Responding to Gonzales’ claim, Wisconsin Sen. Russell Feingold said on NBC’s Today Show. “Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States.”
In a briefing for reporters after his television appearances, Gonzales said his position was bolstered by the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld. In that decision, written by Justice Sandra Day O’Connor, the court said the resolution constituted “explicit congressional authorization for the detention of individuals” in the narrow category of terrorism related to the September 11 attacks. At the same time, the court said that the legality of any individual detention could not be determined by the government alone, but required a judgment by some neutral objective third party.
Gonzales’ comments, made in briefings and on CNN and other network appearances this morning, constituted the administration’s most elaborate attempt yet to explain the derivation of its authority to eavesdrop.
President Bush acknowledged Saturday that since October 2001 he has authorized the National Security Agency to eavesdrop on international phone calls and e-mails of people within the United States without seeking warrants from courts.
The New York Times disclosed the existence of the program last week. Bush and other administration officials initially refused to discuss the surveillance or their legal authority, citing security concerns.
“There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence,” said Gonzales, speaking on CNN.
“We also believe the authorization to use force that was passed by the congress. . . . constituted additional authorization for the president to engage in this kind of signals intelligence.”
The Foreign Intelligence Surveillance Act, he said, provides that you must get a court order for surveillance “except as otherwise authorized by congress. That other authorization by Congress exists in that resolution to use military force,” he said.
The exact language of the law is: “A person is guilty of an offense if he intentionally. . . . engages in electronic surveillance under color of law except as authorized by statute.”
The relevant language of the 2001 resolution is: “. . . . 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.”
Speaking on CBS this morning, Gonzales also said that the Foreign Intelligence Surveillance Act was outdated. “We’ve had dramatic changes in technology. And we are confronting a new kind of enemy and a new kind of war, and we need to have the speed and agility and utilize all the tools available to this president in confronting this enemy,” he said.
At the briefing this morning, Gonzales was accompanied by the former head of the agency doing the eavesdropping, the National Security Agency, Michael V. Hayden, who now serves as deputy to Director of National Intelligence John Negroponte.
“The whole key here is agility,” he said, explaining why the government avoided the court approval required by FISA. The program requires a “quicker trigger and softer trigger” than the FISA eavesdropping.
Sen. Russell Feingold (D-Wis) responded to Gonzales’ comments in an NBC interview this morning. “This is just an outrageous power grab,” he said. “Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States.
“There’s two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That’s it. That’s the only way you can do it. You can’t make up a law and deriving it from the Afghanistan resolution.
Democrats and Republicans called separately yesterday for congressional investigations into President Bush’s decision after the Sept. 11, 2001, terrorist attacks to allow domestic eavesdropping without court approval.
“The president has, I think, made up a law that we never passed,” said Feingold.
Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, said he intends to hold hearings. “They talk about constitutional authority,” Specter said. “There are limits as to what the president can do.”