The Meat of the matter all the rest is BULLSHIT!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."
GONZALES: This is a very broadly worded authorization. It is also one that must permit electronic surveillance of those associated with Al Qaida.
Our enemies operate secretly and they 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.
Now, we all agree that it's a necessary and appropriate use of force to fire bullets and missiles at Al Qaida strongholds. Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept Al Qaida 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.
A few members of Congress have suggested that they personally did not intend the force resolution to authorize the electronic surveillance of the enemy, Al Qaida.
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.
GONZALES: 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 Qaida. Instead, they authorize the use of all necessary and appropriate force.
Nor does the force resolution require the president to fight Al Qaida 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 that 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 Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to Al Qaida phone calls into and out of the country in order to disrupt their plots is not?
To end the program now would be to afford our enemy dangerous and potential deadly new room for operation within our own borders.
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.
Thank you, Mr. Chairman.
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