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.
