Before we get to that, it's worthwhile to mention that Gonzalez' speech was not a result of happenstance. It is part of a White House "offensive"
, a PR campaign if you will, to defend the NSA's spying on Americans.
Yesterday I wrote an in-depth piece about former NSA director General Michael Hayden, which you can find here. Gonzalez also appeared briefly on NPR as part of this media blitz.
Now onto yesterday's Gonzalez speech, which begins, per regulation, with mentioning September 11, 2001 for three paragraphs. I say "per regulation" because Bush himself just two days ago said that he knew on 9/11 that the attacks "would fade in people's memory", so clearly it's the administration's self-assumed responsibility to make sure that 9/11 is never forgotten.
I'll leave aside the question of what that implies about the average American's memory and/or patriotism, and I definitely won't delve into any tangents about 50 million Southeners who haven't forgotten a war that occurred 150 years ago.
Let's get to Gonzalez at Georgetown:
The open wounds so many of us carry from that day are the backdrop to the current debate about the National Security Agency's terrorist surveillance program.
As many have noted, the term "Terrorist Surveillance Program" (TSP) is now part of the media campaign. The Pickler acknowledges this as the administration is trying to re-label what was formerly known as "warrantless spying program" or "illegal surveillance of Americans program".
Googlers seem to suggest that this term was coined by pro-Bush bloggers. If so, I wonder who passed the word up to the White House.
Back to Abu:
This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda. This program is reviewed and reauthorized by the President approximately every 45 days. The leadership of Congress, including the leaders of the Intelligence Committees of both Houses of Congress, have been briefed about this program more than a dozen times since 2001.
As many astute bloggers have noted, the 4th Amendment requires probable cause. The FISC court also requires probable cause. The new administration talking point is that the 4th amendment standard has been lowered to "reasonable suspicion".
As for Gonzalez' assertion that Congress briefed the Intelligence Committee, some members beg to disagree. From here:
The top Democrat on the House Intelligence Committee told President Bush Wednesday that the White House broke the law by withholding information from the full congressional oversight committees about a new domestic surveillance program.
The Congressional Review Service, a bipartisan agency, agrees with that assessment, saying that not briefing the Intel Committee is "inconsistent with the law".
What Gonzalez is referring to is that only the "Gang of 8", the 4 Senators and top 4 Representatives who are the chairperson/ranking member of the select committees were briefed. The reason is because the administration classifies the NSA program as a Special Access Program (SAP).
SAP's are what Hollywood refers to as "black ops", conducted by the military (the NSA is a division of the Pentagon). For more information this, see my full article here. Gonzalez and the administration are arguing the FISA bypass "authorization" to spy on Americans was a military black op. Many members of Congress, including Arlen Specter disagree, feeling that surveillance in the name of law enforcement is part of the normal legal procedures of the United States.
Not that the names of who is being surveilled should be publicized, nor any specifics about the technology and procedures of how the NSA conducts that surveillance. The issue at hand is whether the procedures for authorizing surveillance are public law (as is FISA) or whether they should be treated like a military black op. The administration, including Gonzalez, favor the latter.
To give a further example - the police in your hometown can go to a judge and get a warrant to tap your phone if they present evidence of probable cause that you are committing a crime. This isn't secret knowledge - it's printed in the law books - but of course the police don't tell you they're bugging your phone until after you're arrested. Of course, in that case you and your lawyer can demand to see the warrant that authorized the wiretap.
Back to Abu at Georgetown:
A word of caution here. This remains a highly classified program. It remains an important tool in protecting America. So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. And unfortunately, they have caused concern over the potential breadth of what the President has actually authorized.
They are classified because they are a military op, not part of the lawful procedures of the United States. And I haven't seen any traditional media reports which are "misinformed" or "confusing" at all.
The issue is simple. Congress passed a law in 1978 called FISA, which regulated when and how the government could use electronic surveillance on Americans. Bush and Gonzalez (and Ashcroft and Rumsfeld) decided to break that law by creating a secret military operation.
It seems that everyone who has heard of the President's actions has an opinion - as well we should regarding matters of national security, separation of powers, and civil liberties. Of course, a few critics are interested only in political gains. Other doubters hope the President will do everything he can to protect our country, but they worry about the appropriate checks upon a Commander in Chief's ability to monitor the enemy in a time of war.
Whatever your opinion, this much is clear: No one is above the law. We are all bound by the Constitution, and no matter the pain and anger we feel from the attacks, we must all abide by the Constitution. During my confirmation hearing, I said that, quote, "we are very, very mindful of Justice O'Connor's statement in the 2004 Hamdi decision that a state of war is not a blank check for the President of the United States with respect to the rights of American citizens. I understand that and I agree with that." Close quote. The President takes seriously his obligations to protect the American people and to protect the Constitution, and he is committed to upholding both of those obligations.
Yes, well count me in as one of the "doubters". Gonzalez is very crafty with his words, with all the talk about being bound by the Constitution. What Gonzales and other Torture MastersTM (such as John Yoo) decided to do after 9/11 was find esoteric "loopholes" in the law, which permit not only NSA spying on Americans but torture itself.
When it comes to an ordinary citizen, enforcing the law is rather straightforward. If the government (local, state or federal) determine you've broken the law, they take you to court and prosecute you with those laws. It is when the government itself breaks the law that the system tends to break down. That's because the system moves much more slowly.
For example, Congress could pass an unconstitutional law. It then takes a lawsuit to challenge the law in the judiciary branch, which reviews the legislation and determines there is a violation. That's what happened to the Child Online Protection Act (COPA), passed into law in 1998. After a number of lawsuits, the Supreme Court ruled it "likely to be uncontitutional" in 2004.
Gonzalez and his fellow Torture MastersTM at the DOJ realized that it takes a long time for courts (and Congress) to move and therefore searched diligently for shaky legal justification for whatever the administration wanted to do. The NSA spying program began in 2001 but the public (and the majority of Congress) only found out about it in 2005.
I've noticed that through all of the noise on this topic, very few have asked that the terrorist surveillance program be stopped. The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes.
It isn't "noise", it's citizens and the media participating in democracy. After all it is supposed to be a government for the people, by and of the people.
Secondly, Congress is holding hearings on February 6 precisely to determine whether it should be stopped. The ACLU and other groups have filed lawsuits to have it stopped. Patrick Leahy has introduced legislation stating that the AUMF (Authorization to Use Military Force) of September 18, 2001 did not authorize warrantless eavesdropping on Americans.
Democrat and Republican (including Snowe and Hagel) members of Congress have called for an investigation.
Gonzalez and Hayden and numerous others have only addressed the question of "is it necessary?" by saying that it was necessary for classified reasons. The DOJ released a white paper with this exact justification, which I wrote about in-depth here.
The terrorist surveillance program is firmly grounded in the President's constitutional authorities. No other public official - no mayor, no governor, no member of Congress -- is charged by the Constitution with the primary responsibility for protecting the safety of all Americans - and the Constitution gives the President all authority necessary to fulfill this solemn duty.
It has long been recognized that the President's constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
It "has long been recognized" means prior to FISA. As I wrote about on Sunday, the administration has two legs on which it bases its justification to conduct warrantless eavesdropping on Americans. The first one is:
The President always had this power all along! - This is largely argued based on a FISC Court of Review from 2002. See the link above for more detail, but essentially in 2002 the Attorney General (then Ashcroft) called for a review when FISC turned down a warrant. The FISC eventually sided with the government, adding a paragraph about how they couldn't "encroach" on the president's "established right to conduct warrantless searches".
The problem with this finding, as the CRS analysis showed quite well, is that the president's right to conduct warrantless searches is not well-established at all. There were a number of court rulings (including the famous "Keith" case) which supported this view, but they were before FISA was passed.
Furthermore, as Gonzalez will refer later in his Georgetown speech (see below), there are some court rulings that show the President has the right to conduct warrantless searches in his pursuit of foreign policy - but these are all physical searches. They refer to cases of where law enforcement agencies raided the homes of diplomats and foreign spies, et al. (a notable case occurred wherein homes of the Irish Republican Army were targeted).
When FISA became law, it was about electronic surveillance and only electronic surveillance. It was later amended to include physical searches, but only of non-Americans who are working for a foreign power (which would include a terrorist organization like Al-Qaeda). It specifically states that physical searches of Americans (citizens or legal residents) can only be conducted with a warrant (based on probable cause).
FISA was amended during the Clinton administration to specifically include physical searches. Therefore the President no longer had the power to conduct warrantless searches in the name of foreign policy.
Back to Abu:
The President's authority to take military action--including the use of communications intelligence targeted at the enemy--does not come merely from his inherent constitutional powers. It comes directly from Congress as well.
Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Second, it supplemented that authority by authorizing the President to, quote, "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" in order to prevent further attacks on the United States.
This is the second leg of the administration's defense:
Congress authorized it in the AUMF! - Again, this is examined in great detail in my earlier article and by the Congressional Research Service. Most legal experts feel that Congress authorized the President to conduct a war against Al-Qaeda, but this refers to operations not conducted on American soil.
The NSA needs no special legislation to collect intelligence overseas. It's perfectly permissible under FISA and nobody has a problem with that. The issue at hand is spying on Americans without a warrant (based on probable cause). If there are terrorists operating inside the United States, and they are either citizens or legal residents, then why not honor FISA and get a warrant?
The United States has been involved in dozens (if not hundreds) of wars since its inception, including the Civil War of the 1860's. There is an enormous amount of case law stating that ordinary, civilian law applies in all cases even during wartime. Abraham Lincoln suspended habeas corpus during the Civil War and the Supreme Court later ruled this unconstitutional, saying that whenever civilian courts were operational, the president could not suspend habeas corpus.
If the law stated that the Civil War, which occurred entirely on American soil, was no justification for suspension or bypassing the Constitution, then how could the "War on Terror" justify bypassing or suspending FISA?
Gonzalez and the administration keep mentioning that they "briefed Congress" and insinuate that Congress knew all along and supported the measure. If that's the case, why not work with Congress to modify FISA to allow for "reasonable suspicion" surveillance provisions against Americans?
Using the same logic as Gonzalez, the AUMF authorized the President to do anything so long as it was in the name of the "War on Terror". If he could bypass FISA, he could suspend habeas corpus, he could suspend the Geneva Conventions, he could authorize torture, he could authorize the kidnapping of American citizens from foreign soil and keep them in jail indefinitely. He could even authorize that non-Americans be snatched from allied countries and held incommunicado for years on end without being charged with a crime, without being given access to a lawyer, without even the Red Cross visiting and verifying that he was treated in a humane manner. The list is endless.
Back to Gonzalez:
Some have pointed to the provision in FISA that allows for so-called "emergency authorizations" of surveillance for 72 hours without a court order. There's 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 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. That review process can take precious time.
Thus, 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 sign-off of lawyers at the NSA 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 we would have to be prepared to follow up with a full FISA application within the 72 hours.
A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.
Again, if the law needed to be modified, why not work with Congress? If the procedures were too slow, if it takes too many lawyers to sign their names to documents which may one day become public and available for scrutiny in a criminal trial, if the whole thing is too wieldy and bulky and cumbersome, why not go to Congress and modify or amend the law?
The PATRIOT Act was passed en masse by Congress with no debate, and indeed very few members even read the legislation. I doubt there would be a single member of Congress who would oppose any reasonable effort to catch members of Al-Qaeda and prevent terrorist attacks.
Of course the Bush/Gonzalez plan is not reasonable. If it was, they could've gotten Congress to craft appropriate legislation, which of course comes with oversight. A military black op on the other hand doesn't come with any oversight. It is funded by a secret budget that only 8 members of Congress are allowed to even see, and even then they cannot talk to anyone about it, not even fellow members of their committees.
Gonzalez and the rest can talk until they are blue in the face about how "necessary" the bypassing of FISA is, but if it was so reasonable and justifiable, why not work with Congress? Why keep it secret from even the Intelligence Committee? Why not just get FISA modified?
What Gonzalez won't mention is that the administration already has worked with Congress to modify FISA. The PATRIOT Act itself modified FISA, by allowing FISA warrants to be issued for the primary purpose of (domestic) criminal prosecution. Prior to that, FISA warrants were only issued when the primary motivation was to conduct surveillance of foreign governments and agents of foreign powers.
The PATRIOT Act also authorized that FISA information could be legally shared with domestic law enforcement agencies, such as the FBI, for the purpose of criminal prosecution. In plain English, this means that information gathered in a FISA-authorized wiretap can be passed to the FBI to prosecute someone (a terrorist). Prior to this, the information was somewhat compartmentalized. The FISC Court of Review in 2002 ruled in the administration's favor on this issue.
Gonzalez and the administration spin this by saying since they had worked with Congress before on modifying FISA, Congress knew the President needed broader powers than FISA allowed, and therefore since they chose not to do anything, they approved bypassing FISA by default (or authorized it under the AUMF).
Again, only 8 members of Congress even knew about the bypassing of FISA to allow surveillance against Americans and none of those 8 were allowed to discuss the issue with other members of Congress. So in a hilarious ironic twist, Gonzalez and the administration are arguing that Congress authorized the president to conduct warrantless surveillance of Americans in the AUMF but they themselves do not have the security clearance to know about it!
Back to Abu's speech at Georgetown:
Finally, let me explain why the NSA's terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures.
The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you've been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve "special needs" beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.
The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this "special needs" category. This is by no means a novel conclusion. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.
Once again, FISA was modified after 1994 to refer to physical searches and specifically prohibits physical searches of the homes of Americans. Gonzalez has to know this and yet he continues to put out this bald-faced lie.
The other stuff about searches is just Gonzalez' being openly disengenuous. Boarding a commercial airplane is a voluntary act, and nobody is compelled to do so. Some restaurants have mandatory dress codes, but if you don't feel like wearing a jacket, you don't have to eat there. If you fly a charter jet (or own your own plane), there are absolutely no searches at all.
As for police officers searching someone's vehicle (at sobriety checkpoints or elsewhere), the Supreme Court has ruled that individuals in a vehicle have a reduced expectation of privacy. When a police officer conducts a sobriety breath test, they may not search the car unless they see something in "plain view", they observe a misdemeanor committed in their presence or they have probable cause that an occupant has committed a felony activity.
The courts have ruled specifically on searches conducted at the border and that is a very specific exemption. Another is that warrantless searches can be conducted at public schools.
Furthermore, case law on the 4th amendment clearly states that evidence discovered after a search/seizure cannot be used to retroactively justify the search. But of course the administration isn't interested in using the evidence gained in the NSA surveillance in any kind of prosecution.
Back to Abu at Georgetown:
No one takes lightly the concerns that have been raised about the interception of communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly focused and fully consistent with the traditional forms of enemy surveillance found to be necessary in all previous armed conflicts. The authorities are reviewed approximately every 45 days to ensure that the al Qaeda threat to the national security of this nation continues to exist. Moreover, the standard applied "reasonable basis to believe" is essentially the same as the traditional Fourth Amendment probable cause standard. As the Supreme Court has stated, "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."
Again, watering down "probable cause" to the new definition of "reasonable belief".
As for what "probable cause" means, the Supreme Court ruled in Illinois v. Gates that the "substantial chance" or "fair probability" of criminal activity could establish probable cause. Note that the use of "probable cause" in 4th amendment cases primarily refers to going to the judge to get a warrant. The law enforcement agency must present the judge with evidence of reasonable belief that a crime has been committed.
If there were no FISA law, the administration might actually be justified in spying on Americans in the "reasonable belief" that they were working for on behalf of a terrorist organization. However FISA was passed in 1978 specifically to limit how and when the government can conduct surveillance on Americans.
That FISA law by the way, actually grants warrants based on probable cause. If the administration has probable cause that Americans are working for or on behalf of terrorist organizations, why not get the FISA warrant? And that explanation that it is "too slow" is purely a diversionary tactic, because the bulk of the administration's justification is centered around the AUMF.
If we conduct this reasonable surveillance - while taking special care to preserve civil liberties as we have - we can all continue to enjoy our rights and freedoms for generations to come.
Yes, let's take "special care" to preserve the civil liberties as we have left. The only reason we even know about this program is because some whistleblowers told James Risen at the NYT, who published an article in December 2005 (after sitting on the story for 13 months). There was no judicial or legislative oversight into this "reasonable" surveillance, which makes one wonder about other programs that have yet to be revealed to the public.
Bush flat out denied warrantless surveillance of Americans in 2004 but then openly defended it this week.
As stated earlier, Abu will testify in Congress on February 6. It's time to keep up the pressure on this issue until the people, for whom this warrantless spying is allegedly being done in their name, have their say.
This is cross-posted from Flogging the Simian