Bush Mouthpiece Defends Illegal Spying
From: http://www.truthout.org/docs_2006/020706J.shtml
Tuesday 07 February 2006
Attorney General Alberto Gonzales was called before the Senate Judiciary Committee yesterday to explain why George W.
Bush's program of warrantless spying on Americans is lawful.
Before Gonzales began his testimony, the committee voted along party lines to dispense with the oath. Thus, if Gonzales
were to lie, he could not be convicted or even charged with perjury, which requires the lie be made under oath. Why
would the Republican senators insist that Gonzales not be sworn to tell the truth unless they expected him to lie?
Gonzales testified that Bush authorized his "Terrorist Surveillance Program" in late 2001, and has renewed it every 45
days since then. The program allows the National Security Agency to eavesdrop on telephone and computer communications
of Americans in the United States if the NSA decides there is probable cause to believe that one party is a member or
agent of al Qaeda or an affiliated terrorist organization, provided one party to the conversation is overseas.
The program is so highly classified that Gonzales refused to tell the senators how many US citizens' emails or phone
calls had been intercepted, whether there have been abuses, and whether anyone had been disciplined for abuses.
Bush established this program to circumvent the Foreign Intelligence Surveillance Act. Congress enacted FISA in 1978 in
response to the Nixon administration's abuses of national security wiretaps, which it used against its domestic
opponents under the guise of conducting counterintelligence investigations. A senate committee chaired by Idaho Senator
Frank Church documented the NSA's abuses that led to the enactment of FISA.
FISA requires that the government convince a judge that there is probable cause to believe the target of the
surveillance is a foreign power or the agent of a foreign power. FISA specifically allows for warrantless wartime
domestic electronic surveillance, but only for the first 15 days after Congress declares war.
By its express terms, FISA provides that FISA and specified provisions of the federal criminal code (which governs
wiretaps for criminal investigation) are the "exclusive means by which electronic surveillance … may be conducted."
FISA anticipates the need to act quickly by allowing a warrantless wiretap, provided the government applies for a FISA
court order within 72 hours. However, Gonzales testified that the FISA procedure was "burdensome." He cited the
paperwork as an impediment to the "nimble" gathering of intelligence. Although both the Department of Justice and the
NSA have batteries of lawyers, Gonzales said we "can't afford to pose layers of lawyers" in the process.
Gonzales insisted that Bush's program complies with FISA because FISA exempts from criminal liability those who conduct
electronic surveillance without following FISA procedures where such surveillance is "authorized by statute." Gonzales
maintained that Congress's authorization for the use of military force (AUMF) passed shortly after the September 11,
2001, attacks was a statute that authorizes surveillance outside of FISA. He cited the Supreme Court's decision in Hamdi
v. Rumsfeld, which said the AUMF allows for the detention of US citizen enemy combatants in spite of another statute
governing detentions of US citizens.
However, the Hamdi Court determined that the AUMF permits the use of force only against people captured on the
battlefield during the Afghanistan war. When the Bush administration asked former Senate majority leader Tom Daschle to
include the words "inside the United States" in the AUMF, he refused, and those words do not appear in the resolution.
Gonzales also said that the president's commander in chief powers allow warrantless wiretaps. But as Justice Jackson
wrote in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer, the president's power is "at its lowest ebb" when he acts in defiance of "the expressed or implied
will of Congress." Nowhere is Congress's intent expressed more clearly than in FISA, which comprises the exclusive
scheme for electronic surveillance to gather intelligence.
Congress's October 2001 amendment of FISA in the USA Patriot Act underscores its intent that FISA remain the exclusive
means for authorizing intelligence wiretapping. Gonzales was asked why the administration didn't approach Congress to
amend FISA again if it needed more flexibility to fight terrorism. Gonzales said he opposes amending FISA, ironically
maintaining it would interfere with the NSA program.
So why is the Bush administration loathe to obtain warrants to authorize wiretaps?
"The most logical reason for not getting a warrant is that the president's intelligence acolytes, who behave as though
they graduated from the Laurel and Hardy school of data mining, have not been able to demonstrate that the people being
spied upon are connected to Al Qaeda or any other terror organization," Bob Herbert wrote in yesterday's New York Times.
In other words, even the super-secret FISA court may be refusing to give Bush what he wants because he is overreaching.
A rare May 2002 opinion of the FISA court stated that in March of 2001, the government had reported misstatements in a
series of FISA applications. The court modified then-Attorney General John Ashcroft's request for expanded
intelligence-gathering procedures. In November 2002, the FISA appeals court reversed the lower court and granted
Ashcroft's request. Nonetheless, Bush continued his end-run around FISA with the NSA program.
Gonzales, who said the government still uses FISA in some cases, would not respond when Senator Arlen Specter asked him
why he didn't take the broad NSA program to the FISA court for approval. Gonzales wouldn't say whether he tells the FISA
court that information supporting a warrant request was gathered through the NSA program. And he refused to tell Specter
whether the FISA court is declining to issue warrants because it is not satisfied with the NSA program.
In a February 2003 report on FISA implementation failures, the Senate Judiciary Committee uncovered several problems:
"a misunderstanding of the rules governing the application procedure, varying interpretations of the law among key
participants, and a break-down of communication among all those involved in the FISA application process. Most
disturbing," the committee found, "is the lack of accountability that has permeated the entire application procedure."
The committee concluded that "key FBI agents and officials were inadequately trained in important aspects of not only
FISA, but also fundamental aspects of criminal law."
Notably, the report determined that "in the time leading up to the 9/11 attacks, the FBI and DoJ had not devoted
sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized
line agents."
At the end of the hearing, Gonzales let slip the real reason Bush set up a program to evade FISA. Gonzales said that if
the government had to apply for a FISA warrant, it "can't begin surveillance based on a whim of someone at NSA."
Gonzales would not tell the senators whether Bush has authorized other secret programs besides the NSA spying. Gonzales
refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he has the
authority to search the first class mail of American citizens or to examine people's medical records. When Republican
Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to
think about that."
Gonzales declined to rule out the president's commander in chief power to torture, notwithstanding Congress's passage
of the McCain Amendment on December 30. When Republican Senator Lindsey Graham asked him whether a Congressional statute
that forbids abuse of prisoners could infringe on the president's commander in chief powers, Gonzales said, "It
depends."
Graham was concerned that the "inherent authority of the president" theory that Gonzales set forth "could basically
neuter the Congress and weaken the courts." Graham said he had "never envisioned that the AUMF would give the president
carte blanche to go around FISA." Graham worried that it "would be harder for the next president to get a use of force
resolution." He said, "When a nation is at war, you need checks and balances more than ever."
Bruce Fein, a former Justice Department official in the Reagan administration, predicted that Bush's theory could be
used to authorize internment camps for groups of US citizens the president deems suspicious.
Senator Richard Durbin (D-Ill.) said, "Our greatest fear is that this president will go far beyond" the NSA program and
"comb through thousands of ordinary Americans' email."
Although Gonzales continually waved the 9/11 flag in his defense of the NSA program, the Washington Post reported
Sunday that nearly all of the thousands of Americans' calls that have been intercepted have revealed nothing pertinent
to terrorism.
After the non-partisan Congressional Research Service issued a 44-page analysis that concluded the NSA program was
unlawful, House Intelligence Committee chair Rep. Pete Hoekstra insisted on assurances that CRS "truly provides
'comprehensive and reliable' legislative research that is 'free of partisan or other bias.'"
Former Colorado Senator Gary Hart, a member of the Church Committee in the 1970s, said, "What we're experiencing now,
in my judgment, is a repeat of the Nixon years. Then it was justified by civil unrest and the Vietnam war. Now it's
terrorism and the Iraq war."
When Senator Charles Grassley asked Gonzales if he thought it was incredible that they were having the Senate Judiciary
Committee hearing, Gonzales replied, "I think we have a good story to tell."
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Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive
vice president of the National Lawyers Guild, and the US representative to the executive committee of the American
Association of Jurists.