FEBRUARY 6, 2006
SPEAKERS:
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
WITNESSES:
ALBERTO GONZALES,
U.S. ATTORNEY GENERAL
[*]
SPECTER: It's 9:30. The Judiciary Committee will now proceed with our hearing on the administration's program administered by the National Security Agency on surveillance.
We welcome the attorney general of the United States here today, who will be testifying.
We face, as a nation, as we all know, an enormous threat from international terrorism. The terrorists attacked this country on 9/11, and we remain in danger of renewed terrorist attacks.
The president of the United States has the fundamental responsibility to protect the country, but even, as the Supreme Court has said, the president does not have a blank check.
And this hearing is designed to examine the legal underpinnings of the administration's program from the point of view of the statutory interpretation and also from the point of view of constitutional law.
The Foreign Intelligence Surveillance Act was passed in 1978, and has a forceful and blanket prohibition against any electronic surveillance without a court order. That law was signed by President Carter with a signing statement that that was the exclusive way for electronic surveillance.
There is beyond, a constitutional issue as to whether the president has inherent powers under Article 2 of the Constitution to undertake a program of this sort. If the president has constitutional authority, that trumps and supersedes the statute. The Constitution is the fundamental law of the country, and a statute cannot be inconsistent with a constitutional provision.
SPECTER: We will be examining the administration's contention that, notwithstanding the Foreign Intelligence Surveillance Act, there is statutory authority for what the president has done by virtue of the resolution of Congress authorizing the use of force against the terrorists.
I have already expressed myself as being skeptical of that interpretation. But I believe the administration is entitled to a full and fair opportunity to advance their legal case on that important issue.
We will be examining with the attorney general the generalized rules of statutory interpretation. One of them is that a repeal by implication is disfavored and that the specific governs the generalizations.
And in the Foreign Intelligence Surveillance Act, you have the specific prohibition; contrasted with the generalized authority under the resolution for the authorization for the use of force.
I sent a letter to the attorney general propounding some 15 questions. And I thank the attorney general for his responses. And they will provide, to a substantial extent, the framework for our discussion here today.
One of the key points on my mind is the role of the Foreign Intelligence Surveillance Court. And one of the questions which I asked of the attorney general was the role of the court in granting permission in advance, the role of the court in granting permission within 72 hours after the president exercises surveillance authority; and, beyond that, the issue as to whether the administration might now consider having the Foreign Intelligence Surveillance Court review this entire issue.
The whole question of probable cause is one with very substantial flexibility under our laws, depending upon the circumstances of the case.
SPECTER: The Foreign Intelligence Surveillance Court has a great reputation for integrity, no leaks; candidly, unlike the Congress, candidly, unlike the administration, candidly, unlike all of Washington, perhaps all of the world. But when that court has secrets, they keep the secrets. And they also are well-respected in terms of their technical competence.
And one of the questions, the lead question, which I will be asking the attorney general is whether the administration would consider sending this entire program to the court for their evaluation.
The scope of this hearing is to examine the law on the subject. And the ground rules are that we will not inquire into the factual underpinnings of what is being undertaken here. That is for another committee and for another day. That is for the Intelligence Committee, and that is for a closed session.
It may be that some of the questions which we will ask the attorney general on legal issues may, in his mind, require a closed session. And if they do, we will accommodate his request in that regard.
One of the other questions which I will be directing to the attorney general, following up on the letter, is the practice of making disclosures only to the so-called gang of eight -- the speaker and the Democratic leader in the House, the majority leader and the Democratic leader in the Senate and the chairman and vice president (sic) of the two Intelligence Committees -- and the adequacy of that in terms of the statute, which calls for disclosure to the committees. And the committees are much broader.
And if the administration thinks that the current law is too broad, they have the standing to ask us to change the law. And we would certainly consider that on a showing of necessity to do so.
SPECTER: We have told the attorney general we would require his presence all day. We will have 10-minute rounds, which is double what is the practice of this committee. And, as I've announced in advance, we will have multiple rounds.
There has been some question about swearing in the attorney general and I discussed that with the attorney general. He said he would be willing to be sworn.
After reflecting on the matter, I think it is unwarranted because the law provides ample punishment for a false official statement or a false statement to Congress under the provisions of 18 United States Code 1001 and 18 United States Code Section 1505.
The penalties are equivalent to those under the perjury laws.
There has been a question raised as to the legal memoranda within the department. And at this time and on this showing, it is my judgment that that issue ought to be reserved to another day. I'm sure it will come up in the course of questioning.
The attorney general will have an opportunity to amplify on the administration's position. But there is a fairly well-settled doctrine that internal memoranda within the Department of Justice are not subject to disclosure because of the concern that it would have a chilling effect; that if lawyers are concerned that what they write may later be subjected to review by others, they'll be less than candid in their positions.
SPECTER: This committee has faced those issues in recent times with requests for internal memoranda of Chief Justice Roberts. And they were not produced. And they were more relevant there than here because of the issue of finding some ideas as to how Chief Justice Roberts would function on the court if confirmed.
Here we have legal issues and lawyers on this committee and other lawyers who are as capable as the Department of Justice in interpreting the law.
One other issue has arisen, and that is the issue of showing a video. And I think that would not be in order.
The transcripts of what the president said and the transcripts of what you, Mr. Attorney General, said earlier in a discussion with Senator Feingold are of record -- this is not a Sunday morning talk show -- and the transcripts contain the full statement as to legal import and legal effect. And I'm sure that those statements by the president, those statements by you, will receive considerable attention by this committee.
That's longer than I usually talk, but this is a very big subject.
FEINGOLD: Mr. Chairman?
SPECTER: This is the first of a series of hearings -- at least two more -- because of the very profound and very deep questions which we have here, beyond statutory interpretation and the constitutional implications of the president's Article 2 powers.
And this is all in the context of the United States being under a continuing threat from terrorism.
But the beauty of our system is the separation of powers, the ability of the Congress to call upon the administration for responses, the response of the attorney general in being willing to come here today, and then the Supreme Court to resolve any conflicts.
SPECTER: I'd like to yield now to...
FEINGOLD: Mr. Chairman, could I just ask a quick clarification?
SPECTER: Senator Feingold?
FEINGOLD: Heard your judgment about whether the witness should be sworn. What would be the distinction between this occasion and the confirmation hearing where he was sworn?
SPECTER: The distinction is that it is the practice to swear nominees for attorney general or nominees for the Supreme Court, or nominees for other Cabinet positions, but the attorneys general have appeared here on many occasions in the 25 years that I have been here and their might be a showing, Senator Feingold, to warrant swearing.
FEINGOLD: Mr. Chairman, I'd just say that the reason that anyone would want him sworn has to do with the fact that certain statements were made under oath at the confirmation hearing. So it seems to me logical that, since we're going to be asking about similar things, that he should be sworn in this occasion, as well.
LEAHY: And, Mr. Chairman, if I might on that point -- if I might on that point, of course, the attorney general was sworn in on another occasion other than his confirmation, when he and Director Mueller appeared before this committee for oversight.
And I had asked the chairman, as he knows, earlier that he should be sworn on this. And I made that request right after the press had pointed out where an answer to Senator Feingold appeared not to have been truthful. And I felt that that is an issue that's going to be brought up during this hearing, and we should go into it.
LEAHY: I also recall the chairman and other Republicans insisting that former Attorney General Reno be sworn, which she came up here on occasions other than her confirmation.
I think, especially because of the article about the questions of the senator from Wisconsin, Senator Feingold, I believe he should have been sworn. That is, obviously, the prerogative of the chairman.
But I would state again, and state strongly for the record, what I've told the chairman privately. I think in this instance, similar to what you did in April with Attorney General Gonzales and Director Mueller, both of whom were sworn, and as the chairman did on -- insisted with then-Attorney General Reno, I believe he should be sworn.
SPECTER: Well, Senator Leahy and I have not disagreed on very much in the more than a year since we've worked together as the ranking and chairman, and I think it's strengthened the committee.
And I did receive your request. And I went back and I dug out the transcript and reviewed Senator Feingold's vigorous cross- examination of the attorney general at the confirmation hearings.
And I know the issues as to torture, which Senator Feingold raised, and the issues which Senator Feingold raised as to searches without warrants.
And I have reviewed the provisions of 18 USC 1001 in the case involving Admiral Poindexter, who was convicted under that provision; and have reviewed the provisions of 18 United States Code 1505, where Oliver North was convicted. And there are penalties provided there commensurate with perjury.
And it is my judgment that it is unnecessary to swear the witness.
LEAHY: But, Mr. Chairman, may I ask, if the witness has no objection to being sworn, why not just do it and then not have this question raised here? I realize only the chairman can do the swearing in.
LEAHY: Otherwise, I'd offer to give him the oath myself, insofar as he said he was willing to be sworn in. But if he's willing to be, why not just do it?
SESSIONS (?): Mr. Chairman...
SPECTER: Well, the answer to why I'm not going to do it is that I've examined all the facts and I've examined the law and I have asked the attorney general whether he would object or mind and he said he wouldn't. And I have put that on the record.
But the reason I'm not going to swear him in is not up to him. Attorney General Gonzales is not the chairman; I am. And I'm going to make the ruling.
(CROSSTALK)
LEAHY: I would point out that he's been here before this committee three times. The other two times he was sworn. It seems unusual not to swear him in this time.
FEINGOLD (?): Chairman, I move the witness be sworn.
SPECTER: The chairman has ruled. If there is an appeal from the ruling of the chair, I have a pretty good idea how it's going to come out.
FEINGOLD (?): Mr. Chairman, I appeal the ruling of the chair.
SPECTER: All in favor of the ruling of the chair, say "aye."
(UNKNOWN): Roll call.
SPECTER: Opposed?
FEINGOLD (?): Ask for a roll call vote.
SPECTER: The clerk will call the roll.
I'll call the roll.
(LAUGHTER)
SESSIONS: Out of the question.
(LAUGHTER)
SPECTER: Senator Hatch?
HATCH: No.
SPECTER: Senator Grassley?
GRASSLEY: No.
SPECTER: Senator Kyl?
KYL: Mr. Chairman, is the question to uphold or to reject the ruling?
SPECTER: The question is to uphold the ruling of the chair, so we're looking for ayes, Senator.
(LAUGHTER)
LEAHY: But we're very happy with the noes that have started on the Republican side, they being the better position.
HATCH (?): I'm glad somebody clarified that.
SPECTER: So the question is, "Should the ruling of the chair be upheld that Attorney General Gonzales not be sworn?"
(CROSSTALK)
SPECTER: By proxy for Senator Brownback, aye.
Senator Coburn?
(CROSSTALK)
SPECTER: We've got enough votes already.
Senator Leahy?
LEAHY: Emphatically, no.
(CROSSTALK)
SPECTER: Aye.
The ayes have it.
FEINGOLD: Mr. Chairman, I request to see the proxies given by the Republican senators.
SPECTER: Would you repeat that, Senator Feingold?
FEINGOLD: I request to see the proxies given by the Republican senators.
SPECTER: The practice is to rely upon the staffers. But without counting that vote -- well, we can rephrase the question if there's any serious challenge of the proxies.
This is really not a very good way to begin this hearing.
SPECTER: But I've found that patience is a good practice here.
SESSIONS: Mr. Chairman (OFF-MIKE) very disappointed that we went through this process.
This attorney general, in my view, is a man of integrity. And having read the questions, as you have, that Senator Feingold put forward, and his answers, I believe he'll have a perfect answer to those questions when they come up at this hearing.
And I do not believe they're going to show he perjured himself in any way or was inaccurate in what he said.
And I remember having a conversation with General Myers and Secretary of Defense Rumsfeld, and one of the saddest days in their career was having to come in here and stand before a Senate committee and raise their hand as if they are not trustworthy in matters relating to the defense of this country.
And I think it's not necessary that a duly confirmed Cabinet member have to routinely stand up and just give an oath when they are, in effect, under oath and subject to prosecution if they don't tell the truth.
I think it's just a question of propriety and good taste and due respect from one branch to the other.
And that's why I would support the chair.
LEAHY: Mr. Chairman, I don't...
SPECTER: Let's not engage in protracted debate on this subject. We're not going to swear this witness, and we have the votes to stop it.
Senator Leahy?
LEAHY: Mr. Chairman, I have stated my position why I believe he should be sworn in. But I understand that you have the majority of votes.
Now, the question for this hearing goes into the illegality of the government's domestic spying on ordinary Americans without a warrant.
LEAHY: The question facing us is not whether the government should have all the tools it needs to protect the American people. Of course, they should. Every single member of Congress agrees they should have the tools necessary to protect the American people.
The terrorist threat to America's security remains very real. We should have the tools to protect America's security. That's why I coauthored the Patriot Act five years ago and why it passed with such broad, bipartisan support.
And I would also remind everybody that's why we amended FISA, the Foreign Intelligence Surveillance Act, five times since 9/11, to give it more flexibility; twice during the time when I was chairman.
We all agree that if you have Al Qaida terrorists calling we should be wiretapping them. We don't even need authority to do that overseas and certainly going into, so far, the unsuccessful effort to catch Osama bin Laden in Afghanistan, Congress has given the president authority to monitor Al Qaida messages legally, with checks to guard against abuses with Americans' conversations and e-mails that are being monitored.
But instead of doing what the president has the authority to do legally, he decided to do it illegally without safeguards.
A judge from the special court Congress created to monitor domestic spying would grant any request to monitory an Al Qaida terrorist. Of the approximately 20,000 foreign intelligence warrant applications to these judges over the past 28 years, about a half dozen have been turned down.
I'm glad the chairman's having today's hearing. We have precious little oversight in this Congress, but the chairman and I have a long history of conducting vigorous bipartisan oversight investigation.
And if Congress is going to serve the role it should, instead of being a rubber stamp for whoever is in the executive, we have to have these kind of oversights.
The domestic spying program into e-mails and telephone calls apparently conducted by the National Security Agency was first reported by the New York Times on December 16, 2005.
The next day, President Bush publicly admitted that secret domestic wiretapping has been conducted without warrants since late 2001, and he's issued secret orders to do this more than 30 times.
LEAHY: We've asked for those presidential orders allowing secret eavesdropping on Americans. They have not been provided.
We've asked for official legal opinions of the government that the administration says justify this program. They too have been withheld from us.
Now, the hearing is expressly about the legality of this program. It's not about the operational details; it's about whether we can legally spy on Americans.
In order for us to conduct effective oversight, we need the official documents to get those answers.
We're an oversight committee of the United States Senate, the oversight committee with jurisdiction over the Department of Justice and over its enforcement of the laws of the United States. We are the duly elected representatives of the United States. It's our duty to determine whether the laws of the United States have been violated.
The president and the Justice Department have a constitutional duty to faithfully execute the laws. They do not write the laws. They do not pass the laws. They do not have unchecked powers to decide what laws to follow. And they certainly don't have the power to decide what laws to ignore. They cannot violate the laws and the rights of ordinary Americans.
Mr. Attorney General, in America, our America, nobody is above the law, not even the president of the United States.
There is much that we did not know about the president's secret spying program. I hope we're going to get some more answers, some real answers, not self-serving characterizations.
Let's start with what we do know.
Point one: The president's secret wiretapping program is not authorized by the Foreign Intelligence Surveillance Act.
The law expressly states it provides the exclusive source of authority for wiretapping for intelligence purposes. Wiretapping that's not authorized under this is a federal crime. That is what the law says, so it's what the law means.
This law was enacted to define how domestic surveillance for intelligence purposes can be conducted while protecting the fundamental rights of Americans.
Now, a couple of generations of Americans are too young to know why we passed this law. It was enacted after decades of abuses by the executive, including the wiretapping of Dr. Martin Luther King and other political opponents of early government officials.
LEAHY: After some of the so-called White House enemies in the Nixon White House enemies list -- during that time, another president asserted he did what was legal because he was president and, being president, he could do whatever he wanted to do.
The law's been updated five times since September 11, 2001. It provides broad and flexible authority.
In fact, on July 31st, 2002, your Justice Department testified, "This law is a highly flexible statute that's been proven effective." You noted, when you were trying to prevent terrorist acts, "that is really what FISA was intended to do and it was written with that in mind."
But now the Bush administration concedes the president knowingly created a program involving thousands of wiretaps of Americans in the United States over the period of the last four or five years without complying with FISA.
And legal scholars and former government officials -- including many Republicans -- have been almost unanimous in stating the obvious: This is against the law.
And point two: The authorization for the use of military force Democratic and Republican lawmakers joined together to pass in the days immediately after the September 11th attacks did not give the president the authority to go around the FISA law to wiretap Americans illegally.
That authorization said "to capture or kill Osama bin Laden" and to use the American military to do that. It did not authorize domestic surveillance of American citizens.
You know, let me be clear: Some Republican senators say that we're talking about special rights for terrorists. I have no interest in that. Just like every member of this committee, and thousands of our staffs and every member of the House of Representatives, I go to work every single day in a building that was targeted for destruction by Al Qaida.
Of course I want them captured.
I wish the Bush administration had done a better job. I wish that when they almost had Osama bin Laden, they had kept on after him and caught him and destroyed him, rather than taking our special forces out of Afghanistan and sending them precipitously into Iraq.
LEAHY: But my concern is the laws of America. My concern is when we see peaceful Quakers being spied upon, where we see babies and nuns who can't fly on airplanes because they're on a terrorist watch list put together by your government.
And point three: The president never came to Congress and never sought additional legal authority to engage in the type of domestic surveillance in which NSA has been secretly engaged for the last several years.
And after September 11th, 2001, I led an bipartisan effort to provide the legal tools. We passed amendments to FISA. We passed the U.S. Patriot Act. And we upgraded FISA four times since then.
Back when a Republican senator on this committee proposed a legal change to the standards needed for a FISA warrant, the Bush administration didn't support that effort, but raised questions about it and said it wasn't needed.
The administration told the Senate that FISA is working just fine.
You, Mr. Attorney General, said the administration did not ask for legislation authorizing warrantless wiretapping of Americans; did not think such legislation would pass.
Who did you ask? You didn't ask me. You didn't ask Senator Specter.
Not only did the Bush administration not seek broader legal authority, it kept its very existence of this illegal wiretapping program completely secret from 527 of the 535 members of Congress, including members of this committee and members on the Intelligence Committee.
The administration has not suggested to Congress, the American people that FISA was inadequate, outmoded or irrelevant. You never did that until the press caught you violating the statute with this secret wiretapping of Americans without warrants.
In fact, in 2004, two years after you authorized the secret warrantless wiretapping program -- and this is a tape we're told we can't show -- the president said, quote, "Any time you hear the United States government talking about wiretap, a wiretap requires a court order. Nothing has changed. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
LEAHY: That was when he was running for re-election. Today we know, at the very least, that statement was misleading.
So let me conclude with this. I have many questions for you, but first let me give you a message, Mr. Attorney General: to you, to the president and to the administration. This is a message that should be unanimous from every single member of Congress no matter what their party or their ideology.
Under our Constitution, Congress is a coequal branch of government and we make the laws. If you believe you need new laws, then come and tell us. If Congress agrees, we'll amend the law.
If you do not even attempt to persuade Congress to amend the law, then you're required to follow the law as it's written.
That is true of the president, just as it's true of me and you and every American. That's a rule of law. That's a rule on which our nation was founded. That's the rule on which it endures and prospers.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Leahy.
We turn now to the attorney general of the United States, Alberto R. Gonzales.
The attorney general has held the office for a little over a year. Before that, he was counsel to the president right after the president's inauguration in 2001.
He had served in state government with Governor Bush. He attended the U.S. Air Force Academy from 1975 to 1977, graduated from Rice University for a bachelor's degree, and from the Harvard Law School, and was a partner in the distinguished firm of Vinson & Elkins in Houston before going into state government.
We have allotted 20 minutes for your opening statement, Mr. Attorney General, because of the depth and complexity and importance of the issues which you and we will be addressing.
You may proceed.
GONZALES: Good morning, Chairman Specter, Senator Leahy and members of the committee. I'm pleased to have this opportunity to speak with you.
And let me just add for the record, when Chairman Specter asked me whether I would be willing to go under oath, I did say I would have no objections.
GONZALES: I also said that my answers would be the same, whether or not I was under oath or not.
Al Qaida and its affiliates remain deadly dangerous. Osama bin Laden recently warned America that, quote, "Operations are under preparation and you will see them in your homes."
Bin Laden's deputy, Ayman Al-Zawahiri, added just days ago that the American people are, and I again I quote, "destined for a future colored by blood, the smoke of explosions and the shadows of terror."
None of us can afford to shrug off warnings like this or forget that we remain a nation at war.
Nor can we forget that this is a war against a radical and unconventional enemy. Al Qaida has no boundaries, no government, no standing army. Yet they are capable of wreaking death and destruction on our shores.
And they have sought to fight us not just with bombs and guns. Our enemies are trained in the most sophisticated communications, counter-intelligence and counter-surveillance techniques. And their tactics are constantly changing.
They use video feed and worldwide television networks to communicate with their forces; e-mail, the Internet and cell phones to direct their operations; and even our own training academies to learn how to fly aircraft as suicide-driven missiles.
To fight this unconventional war, while remaining open and vibrantly engaged with the world, we must search out the terrorists abroad and pinpoint their cells here at home.
GONZALES: To succeed, we must deploy not just soldiers and sailors and airmen and Marines, we must also depend on intelligence analysts, surveillance experts and the nimble use of our technological strength.
Before 9/11, terrorists were clustered throughout the United States preparing their assault. We know from the 9/11 Commission report that they communicated with their superiors abroad using e- mail, the Internet and telephones.
General Hayden, the principal deputy director of national intelligence, testified last week before the Senate that the terrorist surveillance program instituted after 9/11 has helped us detect and prevent terror plots in the United States and abroad. Its continuation is vital to the national defense.
Before going any further, I should make clear what I can discuss today. I am here to explain the department's assessment that the president's terrorist surveillance program is consistent with our laws and the Constitution.
I'm not here to discuss the operational details of that program or any other classified activity.
The president has described the terrorist surveillance program in response to certain leaks, and my discussion in this open forum must be limited to those facts the president has publicly confirmed: nothing more.
Many operational details of our intelligence activities remain classified and unknown to our enemy. And it is vital that they remain so.
The president is duty-bound to do everything he can to protect the American people. He took an oath to preserve, protect and defend the Constitution.
In the wake of 9/11, he told the American people that to carry out this solemn responsibility, he would use every lawful means at his disposal to prevent another attack.
One of those means is the terrorist surveillance program.
GONZALES: It's an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.
While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans.
First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.
Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're saying.
Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.
Fourth, this program is administered by career professionals at NSA, expert intelligence analysts and their senior supervisors with access to the best available information. They make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers, and rigorous oversight is provided by the NSA inspector general.
I have been personally assured that no other foreign intelligence program in the history of NSA has received a more thorough review.
Fifth, the program expires by its own terms approximately every 45 days. The program may be reauthorized, but only on the recommendation of intelligence professionals, and there must be a determination that Al Qaida continues to pose a continuing threat to America based on the latest intelligence.
Finally, the bipartisan leadership of the House and Senate Intelligence Committees has known about this program for years.
GONZALES: The bipartisan leadership of both the House and Senate has also been informed.
During the course of these briefings, no members of Congress asked that the program be discontinued.
Mr. Chairman, the terrorist surveillance program is lawful in all respects. As we have thoroughly explained in our written analysis, the president is acting with authority provided both by the Constitution and by statute.
First and foremost, the president is consistent with our Constitution. Under Article 2, the president has the duty and the authority to protect America from attack. Article 2 also makes the president, in the words of the Supreme Court, quote, "the sole organ of government in the field of international relations."
These inherent authorities vested in the president by the Constitution include the power to spy on enemies like Al Qaida without prior approval from other branches of government. The courts have uniformly upheld this principle in case after case.
Fifty-five years ago, the Supreme Court explained that the president's inherent constitutional authorities expressly include, quote, "the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns."
More recently, in 2002, the FISA Court of review explained that, quote, "All the other courts who have decided the issue have held that the president did have inherent authority to conduct warrantless searches to obtain intelligence information."
The court went on to add, quote, "We take for granted that the president does have that authority. And assuming that that is so, FISA could not encroach on the president's constitutional powers."
Now, it is significant, this statement stressing the constitutional limits of the Foreign Intelligence Surveillance Act, or FISA, came from the very appellate court that Congress established to review the decisions of the FISA Court.
Nor is this just the view of the courts. Presidents throughout our history has authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush.
General Washington, for example, instructed his army to intercept letters between British operatives, copy them and allow those communications to go on their way.
President Lincoln used the warrantless wiretapping of telegraph messages during the Civil War to discern the movements and intentions of opposing troops.
GONZALES: President Wilson, in World War I, authorized the military to intercept each and every cable, telephone and telegraph communication going into or out of the United States.
During World War II, President Roosevelt instructed the government to use listening devices to learn the plans of spies in the United States. He also gave the military the authority to review, without warrant, all telecommunications, quote, "passing between the United States and any foreign country."
The far more focused terrorist surveillance program fully satisfies the reasonableness requirement of the Fourth Amendment.
Now, some argue that the passage of FISA diminished the president's inherent authority to intercept any communications, even in a time of conflict. Others disagree, contesting whether and to what degree the legislative branch may extinguish core constitutional authorities granted to the executive branch.
Mr. Chairman, I think that we can all agree that both of the elected branches have important roles to play during a time of war. Even if we assume that the terrorist surveillance programs qualifies as electronic surveillance under FISA, it complies fully with the law.
This is especially so in light of the principle that statues should be read to avoid serious constitutional questions, a principle that has no more important application than during wartime.
GONZALES: By its plain terms, FISA prohibits the government from engaging in electronic surveillance, quote, "except as authorized by statute."
Those words, "except as authorized by statute," are no mere incident of drafting. Instead, they constitute a far-sighted safety valve.
The Congress that passed FISA in 1978 included those words so that future congresses could address unforeseen challenges. The 1978 Congress afforded future lawmakers the ability to modify or eliminate the need for a FISA application without having to amend or repeal FISA.
Congress provided this safety valve because it knew that the only thing certain about foreign threats is that they change in unpredictable ways.
Mr. Chairman, the resolution authorizing the use of military force is exactly the sort of later statutory authorization contemplated by FISA's safety valve.
Just as the 1978 Congress anticipate, a new Congress in 2001 found itself facing a radically new reality. In that new environment, Congress did two critical things when it passed the force resolution.
First, Congress recognized the president's inherent constitutional authority to combat Al Qaida. These inherent authorities, as I have explained, include the right to conduct surveillance of foreign enemies operating inside this country.
Second, Congress confirmed and supplemented the president's inherent authority by authorizing him, quote, "to use all necessary and appropriate force against Al Qaida."