Gonzales On Monitoring The Enemy

 

In the days following Sept. 11, 2001, President Bush charted a course of action to respond to the worst attack on our homeland in history. He promised to use every tool available to defeat al Qaeda and pledged to take the fight to the enemy abroad as he worked to prevent another attack. As he said in the State of the Union address, "Our country must remain on the offensive against terrorism here at home." The president has the constitutional responsibility--and authority--to lead this response.

After Sept. 11, Congress immediately confirmed the president's constitutional authority to "use all necessary and appropriate force" against those "those nations, organizations, or persons he determines" responsible for the attacks. The Authorization for Use of Military Force (AUMF) gave the president the latitude to use a full complement of tools and tactics against our enemy. A majority of Supreme Court justices have concluded that the AUMF authorizes the president to use "fundamental and accepted" incidents of military force in our armed conflict with al Qaeda. The use of signals intelligence--intercepting enemy communications--is a fundamental incident of waging war.

With the recent leak of the NSA's terrorist surveillance program, some have questioned whether this congressional authorization can be read to encompass signals intelligence. In this case, our military is engaged in signals intelligence when they have reason to believe that at least one person is a member or agent of al Qaeda or a related terrorist organization communicating into or out of the U.S. The purpose is to learn the locations, plans and capabilities of our enemy. Consider the facts from both a legal and a commonsense perspective.

The president, as commander in chief, has asserted his authority to use sophisticated military drones to search for Osama bin Laden, to deploy our armed forces in combat zones, and to kill or capture al Qaeda operatives around the world. No one would dispute that the AUMF supports the president in each of these actions.

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies. Any future al Qaeda attacks on the homeland are likely to be carried out, like Sept. 11, by operatives hiding among us. The NSA terrorist surveillance program is a military operation designed to detect them quickly. Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president.

History is clear that signals intelligence is, to use the language of the Supreme Court, "a fundamental incident of waging war." President Wilson authorized the military to intercept all telegraph, telephone and cable communications into and out of the U.S. during World War I. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the U.S. These sweeping measures were seen as necessary and lawful during critical moments of past armed conflicts. So, too, are the more focused intercepts of al Qaeda during our current armed conflict, especially given the nature of the enemy we face.

The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants--a fundamental incident of war-- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] . . . in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA.

Lastly, the terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. Like sobriety checkpoints or border searches, this program involves "special needs" beyond routine law enforcement, an exception to the warrant requirement upheld by the Supreme Court as consistent with the Fourth Amendment.

The AUMF is not a blank check for the president to cash at the expense of the rights of citizens. The NSA's terrorist surveillance program is narrowly focused on the international communications of persons believed to be members or agents of al Qaeda or affiliated terrorist organizations. The terrorist surveillance program protects both the security of the nation and the rights and liberties we cherish. As the president said in his State of the Union speech, "the terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America." When I testify before Congress today, I will tell them not only that the president had the authority to use this effective antiterror tool, but that it would have been irresponsible for him not to employ this weapon to prevent another attack on our country.

Mr. Gonzales is the U.S. attorney general.

 

You gotta problem with that?

Pajamas Media is the place to be for all-out coverage of the Senate hearings (watch video) on the NSA terrorist surveillance program. The NSA hearings video courtesy of Pajamas Media here.

Via Michelle Malkin: "Andy McCarthy examines the Clinton administration and Arlen Specter's question to Bush AG Alberto Gonzales about the "renunciation" of presidential power. More here, here, and here on the Clinton vs. Bush standard."

Capitol Hill is buzzing with talk of a news conference earlier today in which Powerline's Paul Mirengoff was pushing some hard questions at Sen. Teddy Kennedy, D-MA, and Sen. Richard Durbin, D-IL, about the NSA's anti-terrorist international "eavesdropping" program.

Kennedy apparently got flustered with Mirengoff, so Durbin started fielding the questions and himself became increasingly flustered. Read more here. Video here.

That old: "Who do you work for?" line, just does not cut it any more as a defense, and Senators like Durbin and Kennedy will find themselves more and more in situations where they are up against professionals who blogg and who will often be more equiped to deal with the subject than they are used to.

More from Hugh Hewitt on pulling a Mirengoff.

Via Powerline:

A veteran Senate GOP staffer who requested anonymity offered this observation about the significance of the Durbin-Mirengoff exchange:

"The mainstream news media that covers Congress is tightly controlled by the House and Senate press galleries and they would never be so aggressive in pressing a Member of Congress. So this was big, it was unprecedented to have a blogger asking such questions. We need more bloggers up here asking questions because they aren't controlled by the galleries."

My friend Glenn Greenwald who is live blogging for the dems, and has of course been hot on the NSA story from the beginning has been fed the Kennedy diatribe which he kindly passes on. There is talk of an interesting and unexpected approach by the Senator....Yawn....

Glenn: "Today at 2:10 p.m. EST, I'll be on NPR's To the Point to discuss the NSA hearings with Powerline's John Hinderaker. John is confused that there are any hearings at all, because there is nothing to discuss; it's so clear that the President had the right to eavesdrop outside of FISA that there's no issue at all. I'm looking forward to that discussion."

So are we. Read John Hinderaker's important background piece from a couple of days ago, giving a good insight to the proceedings.

Check out Anti Media's new analysis on the old question here.

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Comments

[Semanticleo]

Alexandra, Professor Reynolds;

I understand your reluctance.

[The Ugly American]

Argh! I had our PR guy show up early for a meeting today and I missed the segment!

I could not find a pod cast or transcript on NPR's website. I would sincerely appreciate it if anyone can find it to put up a link. ...................Doh just read at Glenn's blog while I was typing that he did not appear on the program today.

Can't find a transcript of the CSPAN segment either (. I will have more detailed notes from the program tomorrow.

[Semanticleo]

UAmerican;

Thanks for the info. Is a transcript
going to be available today on the NPR site?

May not be available to hear firsthand.

[The Ugly American]

Actually Semanticleo, I have been emailing Hugh Hewitt to ask him to debate Glenn on his radio program. It hasn't happened yet.

Yesterday however Glenn did appear with Con Law professor Robert Turner on Cspan's Washington Journal. I thought Turner provided far more substance and Glenn far more bluster in their arguments. Glenn rarely addressed any substantive point that Professor Turner made.

I have a review here:

Glenn is debating John Hinderacker from Powerline on NPR today at 2:15 EST. I would be curious how you review the debate. Please drop by and let me know.

[Semanticleo]

Alexandra;

You are not going to respond to the idea
of Glenn Greenwald and distinguished law
professor, Instapundit, debating the issue at hand?

Glenn Reynolds has not responded to me on this,
and I feel you, being a lover of truth and
knowledge, would jump at the idea. Was I
wrong?

[Alexandra]

John it's very boring to copy paste identical comments with what you seem to think are such pearls of wisdom all over the web especially using foul language which I don't appreciate on this blog.

[John Palcewski]

Ah, now it's clear why Gonzales did all that smiling yesterday. He knows fascist Karl has all those Repug senators by the balls. They've all gotten the word: Step one inch out of line, guys, and you will be on the LIST.

Which will mean no more big $$$$, no more face time with the Preznit, and you might even find yourself framed as soft on terra. In this country, that's the kiss of death.

He's smiling, too, because he knows that the Democrats are too busy pissing their pants and covering their asses to mount any serious challenge, no matter WHAT laws Preznit and his fascist gang decide to break.

Karl is is fabulous form these days, no matter what that special prosecutor is doing with his Plame grand jury. Karl saw Hillary's face when Bush alluded to Bill during SOTU. Karl also heard Jon Stewart say "That look is where a boner goes to die."

But Karl just smiles, [FOUL LANGUAGE - DELETED BY ATB] The fun has just begun.

[Left Behinds]

Am I the only one who when first reading this thought it was written by Alexandra? I was pretty impressed. ;)

[Semanticleo]

alexandra;

I suggest a live-blogging debate between
Glenn Greenwald and Glenn Reynolds on this
very issue. Could you act as liason and
hook these two up? It would be quite an
event.

[RL]

No problemo Alexandra !

"There is talk of an interesting & unexpected
approach from the Senator(teddy) ... YAWN ..."

let's see, this is the same Senator whose
attorney-general brother bobby(D) (who was
in charge of DOJ & FBI) wiretapped the
Reverend Martin Luther King Jr., with the
dirty-intention of destroying his marriage;
and failed to accomplish this evil goal.
both of these rotten Americans also happen
to be the sons of an infamous Irish bootlegger
(yes, this is how the "American royalty"
earned their dirty-fortune, criminal
booze-sales)

i hope that i don't see this alcohol-guzzling
(he has a preference for chivas), and bloated
pig's face at Mrs. Coretta Scott King's
funeral on cable-tv tomorrow.

if teddy has the chutzpah to show-up at this
beautiful saint's funeral, he will have
elevated hubris to a new and almost
unachievable-level(a gutter comes to mind).

ps. General Hayden(former-director of NSA)
is on the official-record as stating that
the islamoeterrorist republic of Iran is
"aggresively pursuing" a rogue atomic-weapons
program (and i'm fairly certain that the good-
folks at NRO would strongly-support him
concerning this disturbing-fact).

i'm not a betting-man, but if i was, i would
bet that the B2-Spirit(aka: The Boomerang)
drivers at Whiteman AFB, RAF Fairford in
Gloucestershire, and Diego Garcia AFB
have been keeping busy, and are on "stand-by"
for rapid-depoloyment. my hunch is that it
will be sometime after Norooz(March 20th) '06.
i hope that i'm wrong concerning this
very serious atomic-crisis in the Middle East.