Prepared Statement of
Attorney General Alberto R. Gonzales
U.S. Senate Judiciary Committee
Monday, February 6, 2006
Good morning Chairman Specter, Senator Leahy, and members of the Committee. I'm pleased to have this opportunity to speak with you.
Al Qaeda 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 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 Qaeda 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 phone calls 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. To succeed, we must deploy not just soldiers, sailors, airmen and marines. We must also depend on intelligence analysts, surveillance experts, and the nimble use of our technological strengths.
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 Constitution. I am 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 they remain that way.
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 - 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. 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 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 Qaeda or an affiliated terrorist organization. As the President has said, if you're talking with al Qaeda, 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 make the decision 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 Qaeda 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. 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 program is consistent with our Constitution. Under Article II, the President has the duty and the authority to protect America from attack. Article II 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 Qaeda 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 to 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 it is so, FISA could not encroach on the President's constitutional powers." It is significant that 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 have 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 then 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.
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.
Some argue that the passage of FISA diminished the President's inherent authority to intercept enemy 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 we all can 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 program qualifies as "electronic surveillance" under FISA, it complies fully with that law. This is especially so in light of the principle that statutes should be read to avoid serious constitutional questions - a principle that has no more important application than during wartime.
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 accident 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 anticipated, 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 Qaeda. 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 Qaeda. This is a very broadly worded authorization. It is also one that must permit electronic surveillance of those associated with al Qaeda. Our enemies operate secretly and seek to attack us from within. In this new kind of war, it is both necessary and appropriate for us to take all possible steps to locate our enemy and know what they are plotting before they strike.
We all agree that it is a "necessary and appropriate" use of force to fire bullets and missiles at al Qaeda strongholds. Given this common ground, how can anyone conclude that it is not "necessary and appropriate" to intercept al Qaeda phone calls? The term "necessary and appropriate force" must allow the President to spy on our enemies, not just shoot at them blindly, hoping we might hit the right target.
In fact, other presidents have used statutes like the Force Resolution as a basis for authorizing far broader intelligence surveillance programs. President Wilson in World War I cited not just his inherent authority as Commander in Chief to intercept all telecommunications coming into and out of this country. He also relied on a congressional resolution authorizing the use of force against Germany that parallels the Force Resolution against al Qaeda.
A few Members of Congress have suggested that they personally did not intend the Force Resolution to authorize the electronic surveillance of al Qaeda. But we are a nation governed by written laws, not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the President. And in this case those plain words could not be clearer.
The words contained in the Force Resolution do not limit the President to employing certain tactics against al Qaeda. Instead, they authorize the use of all necessary and appropriate force. Nor does the Force Resolution require the President to fight al Qaeda only in foreign countries. The preamble to the Force Resolution acknowledges the continuing threat - quote - "at home and abroad." Congress passed the Force Resolution in response to a threat that emerged from within our own borders. Plainly, Congress expected the President to address that threat - and to do so with all necessary and appropriate force.
Importantly, the Supreme Court has already interpreted the Force Resolution in the Hamdi case. There, the question was whether the President had the authority to detain an American citizen as an enemy combatant - and to do so despite a specific statute that said no American citizen could be detained except as provided by Congress.
A majority of the Justices in Hamdi concluded that the broad language of the Force Resolution gave the President the authority to employ the traditional incidents of waging war. Justice O'Connor explained that these traditional powers include the right to detain enemy combatants - and to do so even if they happen to be American citizens. If the detention of an American citizen who fought with al Qaeda is authorized by the Force Resolution as an incident of waging war, how can it be that merely listening to al Qaeda phone calls into and out of the country in order to disrupt their plots is not?
Some have asked if the President could have obtained the same intelligence using traditional FISA processes. Let me respond by assuring you that we make robust use of FISA in our war efforts. We constantly search for ways to use FISA more effectively. In this debate, however, I have been concerned that some who have asked, "why not FISA?" do not understand how that statute really works.
To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency circumstances. But before that emergency provision can be used, the Attorney General must make a determination that all of the requirements of the FISA statute are met. This requirement can be cumbersome. Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all of the requirements of the statute. Then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application. Finally, I - as Attorney General - must review the request and make the determination that all of the requirements of FISA are met.
But even this is not the end of the story. Each emergency authorization must be followed by a detailed formal application to the FISA Court within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with national security responsibility, such as the Director of the FBI. Finally, a judge must review, consider, and approve the application. All of these steps take time. Al Qaeda, however, does not wait.
While FISA is appropriate for general foreign intelligence collection, the President made the determination that FISA is not always sufficient for providing the sort of nimble early warning system we need against al Qaeda. Just as we can't demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the Attorney General or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time.
Mr. Chairman, the terrorist surveillance program is necessary. It is lawful. And it respects the civil liberties we all cherish. It is well within the mainstream of what courts and prior Presidents have authorized. It is subject to careful constraints, and Congressional leaders have been briefed on the details of its operation. To end the program now would be to afford our enemy dangerous and potentially deadly new room for operation within our own borders.
I have highlighted the legal authority for the terrorist surveillance program. I look forward to our discussion and know that you appreciate there remain serious constraints on what I can say about operational details. Our enemy is listening. And I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place - and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.