Attorney General Alberto R. Gonzales yesterday defended President Bush’s secret electronic surveillance program, saying presidential powers inherent in the Constitution override a 1978 law requiring the government to obtain warrants for wiretaps.
In a detailed case supporting the covert National Security Agency program, the attorney general also said a special court set up to hand down secret warrants could not be used — even with a provision for so-called “emergency authorizations.”
“The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes,” Mr. Gonzales said in a speech at a Georgetown University Law Center forum.
Some Democrats contend the president overstepped his authority. On Monday, Howard Dean, chairman of the Democratic National Committee, went further, saying, “The question remains: why did President Bush deliberately choose to break the law?”
Mr. Gonzales is expected to be among the first witnesses to testify when the Senate opens hearings on the matter Feb. 6.
“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 long-standing practice,” he said.
Mr. Gonzales discussed the 1978 Foreign Intelligence Surveillance Act, which created a special court to authorize secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage. The court is “the exclusive means by which electronic surveillance … and the interception of wire and oral communications may be conducted,” says one section of the law.
Mr. Gonzales, however, said the court could not have been used in this instance because the law “requires the attorney general to determine in advance that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted.
“That review process can take precious time.”
Mr. Gonzales said the court stated in 2002 that “[w]e take for granted that the president does have that [inherent] authority” and, “assuming that is so — could not encroach on the president’s constitutional power.”
FISA also says “that the government cannot engage in electronic surveillance ‘except as authorized by statute,’” Mr. Gonzales said. “And, in this case, that other statute is the force resolution” passed by Congress three days after the September 11 attacks.
The resolution gave Mr. Bush power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks,” Mr. Gonzales said.
Mr. Bush said the resolution meant that “Congress gave me additional powers to use force, but it didn’t prescribe the tactics.”