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January 25, 2006 Alert No. 1,296.
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AG Gonzales Defends Legality of NSA E-Surveillance Program

1/24. Attorney General Alberto Gonzales gave a speech in Washington DC regarding the National Security Agency's (NSA) extrajudicial electronic surveillance of communications where one party is within the U.S. and the other is without the U.S.

Alberto GonzalesGonzales (at right) began by stating that the terrorist attacks of September 11, 2001 form the "backdrop to the current debate about the National Security Agency's terrorist surveillance program."

He described this NSA program as "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."

He also said that "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."

Thus, instead of discussing the nature of the program, Gonzales focused on the legal authority to run this program.

Constitutional Powers of the President. First, he argued briefly that it "is firmly grounded in the President's constitutional authorities".

He elaborated that "It has long been recognized that the President'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."

Although, he cited no judicial precedent for this in this speech.

Congressional War Resolution. Second, he argued that authority "comes directly from Congress as well", from the September 2001 Congressional joint resolution titled "Authorization for Use of Military Force". See, SJRes 23 (107th Congress), and President Bush's September 18, 2001 signing statement.

He continued that "Congress did two important things. First, it expressly recognized the President's ``authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.创 Second, it supplemented that authority by authorizing the President to, quote, ``use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks创 in order to prevent further attacks on the United States. The Resolution means that the President抯 authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress."

He added that "were we to employ the three-part framework of Justice Jackson's concurring opinion in the Youngstown Steel Seizure case, the President's authority falls within Category One, and is at its highest. He is acting ``pursuant to an express or implied authorization of Congress,创 and the President's authority ``includes all that he possesses in his own right [under the Constitution] plus all that Congress can创 confer on him." (Brackets in original.)

This is the 1952 case Youngstown Sheet & Tube, Co. v. Sawyer, which is reported at 343 U.S. 579. This was not a surveillance case. It pertained to seizure of steel mills by the President. It involved a draconic form of economic regulation, undertaken on the pretext that fighting a war in Korea enhanced the President's authority with respect to domestic economic activity. The Supreme Court held that the President lacks this authority. It was a 6-3 split, with a fractured majority. Justice Hugo Black wrote the opinion of the Court. Justice Robert Jackson, whose concurring opinion Gonzales now cites, was joined by no other Justice.

Jackson also wrote that "There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants." (See, 343 U.S. 643-4.)

Former Chief Justice William Rehnquist was a law clerk of Justice Jackson at the time. Rehnquist wrote 58 pages on this case in his book titled The Supreme Court: How It Was: How It Is [Amazon]. See, Chapter 2, titled "The Steel Seizure Case in the Lower Courts" and Chapter 3, titled "The Steel Seizure Case in the Supreme Court".

Gonzales also cited the 2004 opinion of the Supreme Court in Hamdi v. Rumsfeld, which is reported 542 U.S. 507. The case involved the President's authority to detain an American citizen as an enemy combatant.

Gonzales stated that the Supreme Court "confirmed that the expansive language of the Resolution -- ``all necessary and appropriate force创 -- ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force."

History of Surveillance. Third, Gonzales argued that history supports the NSA program. Basically, he argued communications between parties within and without the U.S. have been intercepted, without court orders, since the war for independence from Britain.

He said that "This Nation has a long tradition of wartime enemy surveillance -- a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence, including the interception of mail between the British and Americans. And for as long as electronic communications have existed, the United States has conducted surveillance of those communications during wartime -- all without judicial warrant. In the Civil War, for example, telegraph wiretapping was common, and provided important intelligence for both sides. In World War I, President Wilson ordered the interception of all cable communications between the United States and Europe; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States."

Gonzales conceded that the war resolution "does not expressly mention surveillance", but argued that "Congress made no attempt to catalog every aspect of the use of force it was authorizing". Instead, Gonzales argued that "following the model of past military force authorizations, Congress -- in general, but broad, terms -- confirmed the President抯 authority to use all traditional and legitimate incidents of military force to identify and defeat the enemy. In doing so, Congress must be understood to have intended that the use of electronic surveillance against the enemy is a fundamental component of military operations."

FISA and Title III. Gonzales next rejected the argument that the 1978 Foreign Intelligence Surveillance Act (FISA), as amended, precludes operation of this NSA program.

He mentioned first that "I'm going to assume here that intercepts of al Qaeda communications under the terrorist surveillance program fall within the definition of ``electronic surveillance创 in FISA."

He also stated that in 1978 "there were concerns among Members of Congress about the constitutionality of FISA itself".

However, he did not assert its unconstitutionality in this speech. Rather, he said that "We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches -- or places an unconstitutional constraint upon -- the President's Article II powers. We can avoid that tough question because Congress gave the President the Force Resolution, and that statute removes any possible tension between what Congress said in 1978 in FISA and the President's constitutional authority today."

Gonzales also rejected the argument that Title III and FISA together are the sole means for conducting electronic surveillance. He said that "It is true that the law says that Title III and FISA are ``the exclusive means by which electronic surveillance . . . may be conducted.创 But, as I have said before, FISA itself says elsewhere that the government cannot engage in electronic surveillance ``except as authorized by statute." It is noteworthy that, FISA did not say ``the government cannot engage in electronic surveillance `except as authorized by FISA and Title III. 创 No, it said, except as authorized by statute -- any statute. And, in this case, that other statute is the Force Resolution."

Title III is a reference to wiretap authority under Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

He also argued that the provisions in the FISA that provide for emergency authorizations, as a practical matter, are inadequate, because they too involve time consuming preparations and procedures.

4th Amendment. Finally, Gonzales argued that the 4th Amendment does not preclude the NSA program.

It provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

He said that "The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you抳e been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve ``special needs创 beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant. The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this ``special needs创 category."

Also on January 24, the White House press office issued a release titled "Setting the Record Straight: Charges Of ``Domestic Spying创".

ACLU Reaction. Anthony Romero, the ACLU's Executive Director, responded in a release that "President Bush and Attorney General Gonzales can manufacture all of the legal justifications they want, but the facts and laws show that this warrantless surveillance violates the First and Fourth Amendment and the Foreign Intelligence Surveillance Act."

He added that "Any opinion coming from the Justice Department has to be viewed with a healthy dose of skepticism, given Attorney General Gonzales involvement in the warrantless spying as White House counsel. The fox may now be guarding the henhouse, which is why we need an independent special counsel."

Romero also called for Congressional hearings.

The Senate Judiciary Committee (SJC) has scheduled a hearing for February 6 titled "Wartime Executive Power and the NSA抯 Surveillance Authority". Gonzales is scheduled to testify.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, January 25

The House will not meet. It will convene for the 2nd Session of the 109th Congress on Tuesday, January 31, 2006. See, Majority Whip's calendar.

The Senate will meet at 9:30 AM. It may begin its debate on the nomination of Judge Sam Alito to be a Justice of the Supreme Court.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing. The witnesses will be Jim Williams (Director of the DHS's US-VISIT) and  Randolph Hite (Director, IT Architecture and Systems Issues, GAO). Location: Room 138, Dirksen Building.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, notice in the Federal Register, December 14, 2005, Vol. 70, No. 239, at Page 74016. Location: Room TW-C305, FCC, 445 12th St., SW.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the third in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

Thursday, January 26

10:00 AM. The Department of the Treasury (DOT) will host a news conference to announce the release of a DVD titled "Identity Theft: Outsmarting the Crooks". The DOT notice states that "Media without Treasury press credentials planning to attend should contact Frances Anderson in Treasury's Office of Public Affairs at (202) 622-2960 or (202) 528-9086 with the following information: name, Social Security number and date of birth." Location: Room 4121 (Treasury Media Room).

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Competition and Convergence". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committee will host a brown bag lunch. This will be planning and informational meeting. For more information, contact Jason Friedrich at jason dot friedrich at dbr dot com or 202 354-1340 or Natalie Roisman at natalie dot roisman at fcc dot gov or 202 418-1655. Location: Drinker Biddle & Reath, 1500 K Street, NW, 11th Floor.

1:00 - 4:00 PM. The National Archives and Records Administration's (NARA) Advisory Committee on Presidential Libraries will meet. See, notice in the Federal Register, January 9, 2006, Vol. 71, No. 5, at Page 1455. Location: Archivist's Board Room, National Archives Building, 700 Pennsylvania Ave., NW.

Friday, January 27

9:30 AM - 1:00 PM The DC Bar Association will host a continuing legal education (CLE) seminar titled "Essential Checklist for Electronic Discovery". The speakers will include Kenneth Withers (The Sedona Conference), Judith Kinney (Legal Technologies Consulting, Kroll Ontrack), Robert Eisenberg (DOAR Litigation Consulting), Magistrate Judge John Facciola (U.S. District Court, DC), and Jonathan Redgrave (Redgrave Daley Ragan & Wagner). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:00 NOON - 1:30 PM. The Progress and Freedom Foundation (PFF) will host its "Second Annual Media Luncheon". RSVP to Amy Smorodin at 202-969-2957 or asmorodin at pff dot org.

Sunday, January 29

Deadline to submit replies to oppositions to the U.S. Telecom Association's petition [PDF] seeking reconsideration and clarification of the Federal Communications Commission's (FCC) CALEA order. This is the FCC's order that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, notice in the Federal Register, January 4, 2006, Vol. 71, No. 2, at Pages 345 - 346.

Monday, January 30

10:00 AM - 5:00 PM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, FCC release [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

4:00 - 5:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The WTO Dispute Settlement System and Developing Countries". Marc Busch (Georgetown University) and Eric Reinhardt (Emory University) will present a paper. The other speakers will be Timothy Reif (House Ways and Means Committee staff), Jay Smith (Georgetown University law school), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Tuesday, January 31

Alan Greenspan's last day as Chairman of the Federal Reserve Board (FRB).

The House will convene for the 2nd Session of the 109th Congress. See, Majority Whip's calendar.

RESCHEDULED FOR JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Broadcast and Audio Flag". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: __.

RESCHEDULED FROM JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Franchising". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

RESCHEDULED FROM JANUARY 24. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Content". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its Policy Development Process on new gTLDs. See, ICANN notice.

Extended deadline to submit nominations for members of the Spectrum Management Advisory Committee to the Department of Commerce's National Telecommunications and Information Administration (NTIA). See, original NTIA release and notice of extension.

Wednesday, February 1

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the fourth in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

Ben Bernanke begins his term as Chairman of the Federal Reserve Board (FRB).

Deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their third round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See also, notice of extensions (DA 05-1930) [2 pages in PDF].

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