Attorney General Alberto R. Gonzales gave an address [full text] at the Georgetown University Law Center last week on the NSA intercepts program.
Iâ€™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.
I don’t recall any of the opposition calling for a stop to the program – perhaps they remember a fragment or two of the 9/11 Commission reports.
The open wounds so many of us carry from that day are the backdrop to the current debate about the National Security Agencyâ€™s terrorist surveillance program. 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.
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.
The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who they are and what theyâ€™re doing â€“ we have to collect more dots, if you will, before we can â€œconnect the dots.â€ This program to surveil al Qaeda is a necessary weapon as we fight to detect and prevent another attack before it happens. I feel confident that is what the American people expect â€¦ and itâ€™s what the terrorist surveillance program provides.
As General Hayden explained yesterday, many men and women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of this surveillance program.
Now, the legal authorities. As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. I expect that as lawyers and law students, you are too.
The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSAâ€™s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the Presidentâ€™s constitutional authorities. No other public official â€“ no mayor, no governor, no member of Congress — is charged by the Constitution with the primary responsibility for protecting the safety of all Americans â€“ and the Constitution gives the President all authority necessary to fulfill this solemn duty.
It has long been recognized that the Presidentâ€™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.
There are five appellate court decisions supporting that presidential power and zero decisions against. Attorney John Hinderaker has extensive comments. Gonzales’ closing:
I close with a reminder that just last week, al Jazeera aired an audio tape in which Osama bin Laden promised a new round of attacks on the United States. Bin Laden said the proof of his promise is, and I quote, â€œthe explosions you have seen in the capitals of European nations.â€ He continued, quote, â€œThe delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through with preparations.â€ Close quote.
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