Attorney General Alberto R. Gonzales yesterday said President Bush has “inherent authority” to conduct secret surveillance on people inside the United States without getting a warrant from any judicial body.
Speaking at the White House before Mr. Bush’s press conference, Mr. Gonzales vigorously defended the legality of the secret domestic spying, the existence of which elicited an uproar on Capitol Hill ever since Mr. Bush acknowledged the program Saturday.
The administration has been authorized to intercept phone calls and gather “signals intelligence” without warrants since shortly after September 11, when Congress authorized the president to “use all necessary and appropriate force” to combat terrorism.
“We also believe the president has the inherent authority under the Constitution, as commander in chief, to engage in this kind of activity,” Mr. Gonzales said. “Signals intelligence has been a fundamental aspect of waging war since the Civil War.”
He said Mr. Bush’s repeated authorization of the program run by the National Security Agency has been only for spying on “communications where one party is outside the United States and where we have a reasonable basis to conclude that one of the parties of the communication is either a member of al Qaeda or affiliated with al Qaeda.”
Federal authorities have been bound by the 1978 Foreign Intelligence Surveillance Act (FISA) to obtain a warrant from the secret FISA court to conduct espionage, such as interceptions of calls between suspects in the United States and others on foreign soil.
The special court consists of 11 judges appointed by the chief justice of the Supreme Court. It has presided over classified warrant applications after FISA made it illegal for the government to spy on U.S. citizens in the United States without such court approval.
Mr. Gonzales acknowledged that law yesterday, but said it could be bypassed by a president if “otherwise authorized by statute or by Congress.”
“Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11, constitutes that other authorization,” he said.
Democrats and Republicans on Capitol Hill are calling for congressional investigations into the eavesdropping program. On Sunday, Sen. Russell D. Feingold, Wisconsin Democrat, said it appeared Mr. Bush had “made up a law that we never passed.”
Sen. Arlen Specter, Pennsylvania Republican and chairman of the Judiciary Committee has said, “They talk about constitutional authority, … there are limits as to what the president can do.”
Air Force Gen. Michael Hayden, the principal deputy director of national intelligence, who joined Mr. Gonzales’ briefing yesterday, said the spying program has helped prevent terror attacks inside the United States.
The move to conduct the program without getting warrants from the FISA court was based on a need for “agility,” he said.
“FISA was built for long-term coverage against known agents of an enemy power. This program isn’t for that,” Gen. Hayden said. “It’s a quicker trigger. It’s a subtly softer trigger. And the intrusion into privacy … is significantly less: it’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order. And our purpose here, our sole purpose, is to detect and prevent.”
Mr. Gonzales said he thought the U.S. Supreme Court would agree with the administration’s position, citing a ruling by the court last year that allowed the administration to use the same congressional war on terror authorization as a justification for detaining Americans as enemy combatants.