[IP] Here's the Bush admin's legal explanation for the comunications surveillance program.
-----Original Message-----
From: "Munro, Neil" <NMunro@xxxxxxxxxxxxxxxxxxx>
To: dave@xxxxxxxxxx
Sent: 12/20/05 10:21
Subject: Here's the Bush admin's legal explanation for the comunications
surveillance program.
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html
Press Briefing by Attorney General Alberto Gonzales and General Michael
Hayden, Principal Deputy Director for National Intelligence
James S. Brady Briefing Room
8:30 A.M. EST
MR. McCLELLAN: Good morning, everybody. I've got with me the Attorney
General and General Hayden here this morning to brief you on the legal
issues surrounding the NSA authorization and take whatever questions you
have for them on that. The Attorney General will open with some comments
and then they'll be glad to take your questions.
And with that, I'll turn it over to General Gonzales.
ATTORNEY GENERAL GONZALES: Thanks, Scott.
The President confirmed the existence of a highly classified program on
Saturday. The program remains highly classified; there are many
operational aspects of the program that have still not been disclosed
and we want to protect that because those aspects of the program are
very, very important to protect the national security of this country.
So I'm only going to be talking about the legal underpinnings for what
has been disclosed by the President.
The President has authorized a program to engage in electronic
surveillance of a particular kind, and this would be the intercepts of
contents of communications where one of the -- one party to the
communication is outside the United States. And this is a very important
point -- people are running around saying that the United States is
somehow spying on American citizens calling their neighbors. Very, very
important to understand that one party to the communication has to be
outside the United States.
Another very important point to remember is that we have to have a
reasonable basis to conclude that one party to the communication is a
member of al Qaeda, affiliated with al Qaeda, or a member of an
organization affiliated with al Qaeda, or working in support of al
Qaeda. We view these authorities as authorities to confront the enemy in
which the United States is at war with -- and that is al Qaeda and those
who are supporting or affiliated with al Qaeda.
What we're trying to do is learn of communications, back and forth, from
within the United States to overseas with members of al Qaeda. And
that's what this program is about.
Now, in terms of legal authorities, the Foreign Intelligence
Surveillance Act provides -- requires a court order before engaging in
this kind of surveillance that I've just discussed and the President
announced on Saturday, unless there is somehow -- there is -- unless
otherwise authorized by statute or by Congress. That's what the law
requires. Our position is, is that the authorization to use force, which
was passed by the Congress in the days following September 11th,
constitutes that other authorization, that other statute by Congress, to
engage in this kind of signals intelligence.
Now, that -- one might argue, now, wait a minute, there's nothing in the
authorization to use force that specifically mentions electronic
surveillance. Let me take you back to a case that the Supreme Court
reviewed this past -- in 2004, the Hamdi decision. As you remember, in
that case, Mr. Hamdi was a U.S. citizen who was contesting his detention
by the United States government. What he said was that there is a
statute, he said, that specifically prohibits the detention of American
citizens without permission, an act by Congress -- and he's right, 18
USC 4001a requires that the United States government cannot detain an
American citizen except by an act of Congress.
We took the position -- the United States government took the position
that Congress had authorized that detention in the authorization to use
force, even though the authorization to use force never mentions the
word "detention." And the Supreme Court, a plurality written by Justice
O'Connor agreed. She said, it was clear and unmistakable that the
Congress had authorized the detention of an American citizen captured on
the battlefield as an enemy combatant for the remainder -- the duration
of the hostilities. So even though the authorization to use force did
not mention the word, "detention," she felt that detention of enemy
soldiers captured on the battlefield was a fundamental incident of
waging war, and therefore, had been authorized by Congress when they
used the words, "authorize the President to use all necessary and
appropriate force."
For the same reason, we believe signals intelligence is even more a
fundamental incident of war, and we believe has been authorized by the
Congress. And even though signals intelligence is not mentioned in the
authorization to use force, we believe that the Court would apply the
same reasoning to recognize the authorization by Congress to engage in
this kind of electronic surveillance.
I might also add that we also believe the President has the inherent
authority under the Constitution, as Commander-in-Chief, to engage in
this kind of activity. Signals intelligence has been a fundamental
aspect of waging war since the Civil War, where we intercepted
telegraphs, obviously, during the world wars, as we intercepted
telegrams in and out of the United States. Signals intelligence is very
important for the United States government to know what the enemy is
doing, to know what the enemy is about to do. It is a fundamental
incident of war, as Justice O'Connor talked about in the Hamdi decision.
We believe that -- and those two authorities exist to allow, permit the
United States government to engage in this kind of surveillance.
The President, of course, is very concerned about the protection of
civil liberties, and that's why we've got strict parameters, strict
guidelines in place out at NSA to ensure that the program is operating
in a way that is consistent with the President's directives. And, again,
the authorization by the President is only to engage in surveillance of
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.
Mike, do you want to -- have anything to add?
GENERAL HAYDEN: I'd just add, in terms of what we do globally with
regard to signals intelligence, which is a critical part of defending
the nation, there are probably no communications more important to what
it is we're trying to do to defend the nation; no communication is more
important for that purpose than those communications that involve al
Qaeda, and one end of which is inside the homeland, one end of which is
inside the United States. Our purpose here is to detect and prevent
attacks. And the program in this regard has been successful.
Q General, are you able to say how many Americans were caught in this
surveillance?
ATTORNEY GENERAL GONZALES: I'm not -- I can't get into the specific
numbers because that information remains classified. Again, this is not
a situation where -- of domestic spying. To the extent that there is a
moderate and heavy communication involving an American citizen, it would
be a communication where the other end of the call is outside the United
States and where we believe that either the American citizen or the
person outside the United States is somehow affiliated with al Qaeda.
Q General, can you tell us why you don't choose to go to the FISA court?
ATTORNEY GENERAL GONZALES: Well, we continue to go to the FISA court and
obtain orders. It is a very important tool that we continue to utilize.
Our position is that we are not legally required to do, in this
particular case, because the law requires that we -- FISA requires that
we get a court order, unless authorized by a statute, and we believe
that authorization has occurred.
The operators out at NSA tell me that we don't have the speed and the
agility that we need, in all circumstances, to deal with this new kind
of enemy. You have to remember that FISA was passed by the Congress in
1978. There have been tremendous advances in technology --
Q But it's been kind of retroactively, hasn't it?
ATTORNEY GENERAL GONZALES: -- since then. Pardon me?
Q It's been done retroactively before, hasn't it?
ATTORNEY GENERAL GONZALES: What do you mean, "retroactively"?
Q You just go ahead and then you apply for the FISA clearance, because
it's damn near automatic.
ATTORNEY GENERAL GONZALES: If we -- but there are standards that have to
be met, obviously, and you're right, there is a procedure where we -- an
emergency procedure that allows us to make a decision to authorize -- to
utilize FISA, and then we go to the court and get confirmation of that
authority.
But, again, FISA is very important in the war on terror, but it doesn't
provide the speed and the agility that we need in all circumstances to
deal with this new kind of threat.
Q But what -- go ahead.
GENERAL HAYDEN: Let me just add to the response to the last question. As
the Attorney General says, FISA is very important, we make full use of
FISA. But if you picture what FISA was designed to do, FISA is designed
to handle the needs in the nation in two broad categories: there's a law
enforcement aspect of it; and the other aspect is the continued
collection of foreign intelligence. I don't think anyone could claim
that FISA was envisaged as a tool to cover armed enemy combatants in
preparation for attacks inside the United States. And that's what this
authorization under the President is designed to help us do.
Q Have you identified armed enemy combatants, through this program, in
the United States?
GENERAL HAYDEN: This program has been successful in detecting and
preventing attacks inside the United States.
Q General Hayden, I know you're not going to talk about specifics about
that, and you say it's been successful. But would it have been as
successful -- can you unequivocally say that something has been stopped
or there was an imminent attack or you got information through this that
you could not have gotten through going to the court?
GENERAL HAYDEN: I can say unequivocally, all right, that we have got
information through this program that would not otherwise have been
available.
Q Through the court? Because of the speed that you got it?
GENERAL HAYDEN: Yes, because of the speed, because of the procedures,
because of the processes and requirements set up in the FISA process, I
can say unequivocally that we have used this program in lieu of that and
this program has been successful.
Q But one of the things that concerns people is the slippery slope. If
you said you absolutely need this program, you have to do it quickly --
then if you have someone you suspect being a member of al Qaeda, and
they're in the United States, and there is a phone call between two
people in the United States, why not use that, then, if it's so
important? Why not go that route? Why not go further?
GENERAL HAYDEN: Across the board, there is a judgment that we all have
to make -- and I made this speech a day or two after 9/11 to the NSA
workforce -- I said, free peoples always have to judge where they want
to be on that spectrum between security and liberty; that there will be
great pressures on us after those attacks to move our national banner
down in the direction of security. What I said to the NSA workforce is,
our job is to keep Americans free by making Americans feel safe again.
That's been the mission of the National Security Agency since the day
after the attack, is when I talked -- two days after the attack is when
I said that to the workforce.
There's always a balancing between security and liberty. We understand
that this is a more -- I'll use the word "aggressive" program than would
be traditionally available under FISA. It is also less intrusive. It
deals only with international calls. It is generally for far shorter
periods of time. And it is not designed to collect reams of
intelligence, but to detect and warn and prevent about attacks. And,
therefore, that's where we've decided to draw that balance between
security and liberty.
Q Gentlemen, can you say when Congress was first briefed, who was
included in that, and will there be a leaks investigation?
ATTORNEY GENERAL GONZALES: Well of course, we're not going to -- we
don't talk about -- we try not to talk about investigations. As to
whether or not there will be a leak investigation, as the President
indicated, this is really hurting national security, this has really
hurt our country, and we are concerned that a very valuable tool has
been compromised. As to whether or not there will be a leak
investigation, we'll just have to wait and see.
And your first question was?
Q When was Congress first briefed --
ATTORNEY GENERAL GONZALES: I'm not going to -- I'm not going to talk
about -- I'll let others talk about when Congress was first briefed.
What I can say is, as the President indicated on Saturday, there have
been numerous briefings with certain key members of Congress. Obviously,
some members have come out since the revelations on Saturday, saying
that they hadn't been briefed. This is a very classified program. It is
probably the most classified program that exists in the United States
government, because the tools are so valuable, and therefore, decisions
were made to brief only key members of Congress. We have begun the
process now of reaching out to other members of Congress. I met last
night, for example, with Chairman Specter and other members of Congress
to talk about the legal aspects of this program.
And so we are engaged in a dialogue now to talk with Congress, but also
-- but we're still mindful of the fact that still -- this is still a
very highly classified program, and there are still limits about what we
can say today, even to certain members of Congress.
Q General, what's really compromised by the public knowledge of this
program? Don't you assume that the other side thinks we're listening to
them? I mean, come on.
GENERAL HAYDEN: The fact that this program has been successful is proof
to me that what you claim to be an assumption is certainly not
universal. The more we discuss it, the more we put it in the face of
those who would do us harm, the more they will respond to this and
protect their communications and make it more difficult for us to defend
the nation.
Q Mr. Attorney General --
Q -- became public, have you seen any evidence in a change in the
tactics or --
ATTORNEY GENERAL GONZALES: We're not going to comment on that kind of
operational aspect.
Q You say this has really hurt the American people. Is that based only
on your feeling about it, or is there some empirical evidence to back
that up, even if you can't --
ATTORNEY GENERAL GONZALES: I think the existence of this program, the
confirmation of the -- I mean, the fact that this program exists, in my
judgment, has compromised national security, as the President indicated
on Saturday.
Q I'd like to ask you, what are the constitutional limits on this power
that you see laid out in the statute and in your inherent constitutional
war power? And what's to prevent you from just listening to everyone's
conversation and trying to find the word "bomb," or something like that?
ATTORNEY GENERAL GONZALES: Well, that's a good question. This was a
question that was raised in some of my discussions last night with
members of Congress. The President has not authorized -- has not
authorized blanket surveillance of communications here in the United
States. He's been very clear about the kind of surveillance that we're
going to engage in. And that surveillance is tied with our conflict with
al Qaeda.
You know, we feel comfortable that this surveillance is consistent with
requirements of the 4th Amendment. The touchstone of the 4th Amendment
is reasonableness, and the Supreme Court has long held that there are
exceptions to the warrant requirement in -- when special needs outside
the law enforcement arena. And we think that that standard has been met
here. When you're talking about communications involving al Qaeda, when
you -- obviously there are significant privacy interests implicated
here, but we think that those privacy interests have been addressed;
when you think about the fact that this is an authorization that's
ongoing, it's not a permanent authorization, it has to be reevaluated
from time to time. There are additional safeguards that have been in
place -- that have been imposed out at NSA, and we believe that it is a
reasonable application of these authorities.
Q Mr. Attorney General, haven't you stretched --
Q -- adequate because of technological advances? Wouldn't you do the
country a better service to address that issue and fix it, instead of
doing a backdoor approach --
ATTORNEY GENERAL GONZALES: This is not a backdoor approach. We believe
Congress has authorized this kind of surveillance. We have had
discussions with Congress in the past -- certain members of Congress --
as to whether or not FISA could be amended to allow us to adequately
deal with this kind of threat, and we were advised that that would be
difficult, if not impossible.
Q If this is not backdoor, is this at least a judgment call? Can you see
why other people would look at it and say, well, no, we don't see it
that way?
ATTORNEY GENERAL GONZALES: I think some of the concern is because people
had not been briefed; they don't understand the specifics of the
program, they don't understand the strict safeguards within the program.
And I haven't had a discussion -- an opportunity to have a discussion
with them about our legal analysis. So, obviously, we're in that process
now. Part of the reason for this press brief today is to have you help
us educate the American people and the American Congress about what
we're doing and the legal basis for what we're doing.
Q Al, you talk about the successes and the critical intercepts of the
program. Have there also been cases in which after listening in or
intercepting, you realize you had the wrong guy and you listened to what
you shouldn't have?
GENERAL HAYDEN: That's why I mentioned earlier that the program is less
intrusive. It deals only with international calls. The time period in
which we would conduct our work is much shorter, in general, overall,
than it would be under FISA. And one of the true purposes of this is to
be very agile, as you described.
If this particular line of logic, this reasoning that took us to this
place proves to be inaccurate, we move off of it right away.
Q Are there cases in which --
GENERAL HAYDEN: Yes, of course.
Q Can you give us some idea of percentage, or how often you get it right
and how often you get it wrong?
GENERAL HAYDEN: No, it would be very -- no, I cannot, without getting
into the operational details. I'm sorry.
Q But there are cases where you wind up listening in where you realize
you shouldn't have?
GENERAL HAYDEN: There are cases like we do with regard to the global
SIGIN system -- you have reasons to go after particular activities,
particular communications. There's a logic; there is a standard as to
why you would go after that, not just in a legal sense, which is very
powerful, but in a practical sense. We can't waste resources on targets
that simply don't provide valuable information. And when we decide that
is the case -- and in this program, the standards, in terms of
re-evaluating whether or not this coverage is worthwhile at all, are
measured in days and weeks.
Q Would someone in a case in which you got it wrong have a cause of
action against the government?
ATTORNEY GENERAL GONZALES: That is something I'm not going to answer,
Ken.
Q I wanted to ask you a question. Do you think the government has the
right to break the law?
ATTORNEY GENERAL GONZALES: Absolutely not. I don't believe anyone is
above the law.
Q You have stretched this resolution for war into giving you carte
blanche to do anything you want to do.
ATTORNEY GENERAL GONZALES: Well, one might make that same argument in
connection with detention of American citizens, which is far more
intrusive than listening into a conversation. There may be some members
of Congress who might say, we never --
Q That's your interpretation. That isn't Congress' interpretation.
ATTORNEY GENERAL GONZALES: Well, I'm just giving you the analysis --
Q You're never supposed to spy on Americans.
ATTORNEY GENERAL GONZALES: I'm just giving the analysis used by Justice
O'Connor -- and she said clearly and unmistakenly the Congress
authorized the President of the United States to detain an American
citizen, even though the authorization to use force never mentions the
word "detention" --
Q -- into wiretapping everybody and listening in on --
ATTORNEY GENERAL GONZALES: This is not about wiretapping everyone. This
is a very concentrated, very limited program focused at gaining
information about our enemy.
Q Now that the cat is out of the bag, so to speak, do you expect your
legal analysis to be tested in the courts?
ATTORNEY GENERAL GONZALES: I'm not going to, you know, try to guess as
to what's going to happen about that. We're going to continue to try to
educate the American people and the American Congress about what we're
doing and the basis -- why we believe that the President has the
authority to engage in this kind of conduct.
Q Because there are some very smart legal minds who clearly think a law
has been broken here.
ATTORNEY GENERAL GONZALES: Well, I think that they may be making or
offering up those opinions or assumptions based on very limited
information. They don't have all the information about the program. I
think they probably don't have the information about our legal analysis.
Q Judge Gonzales, will you release then, for the reasons you're saying
now, the declassified versions of the legal rationale for this from OLC?
And if not, why not? To assure the American public that this was done
with the legal authority that you state.
ATTORNEY GENERAL GONZALES: We're engaged now in a process of educating
the American people, again, and educating the Congress. We'll make the
appropriate evaluation at the appropriate time as to whether or not
additional information needs to be provided to the Congress or the
American people.
Q You declassified OLC opinions before, after the torture -- why not do
that here to show, yes, we went through a process?
ATTORNEY GENERAL GONZALES: I'm not confirming the existence of opinions
or the non-existence of opinions. I've offered up today our legal
analysis of the authorities of this President.
Q Sir, can you explain, please, the specific inadequacies in FISA that
have prevented you from sort of going through the normal channels?
GENERAL HAYDEN: One, the whole key here is agility. And let me re-trace
some grounds I tried to suggest earlier. FISA was built for persistence.
FISA was built for long-term coverage against known agents of an enemy
power. And the purpose involved in each of those -- in those cases was
either for a long-term law enforcement purpose or a long-term
intelligence purpose.
This program isn't for that. This is to detect and prevent. And here the
key is not so much persistence as it is agility. It's a quicker trigger.
It's a subtly softer trigger. And the intrusion into privacy -- 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.
Again, I make the point, what we are talking about here are
communications we have every reason to believe are al Qaeda
communications, one end of which is in the United States. And I don't
think any of us would want any inefficiencies in our coverage of those
kinds of communications, above all. And that's what this program allows
us to do -- it allows us to be as agile as operationally required to
cover these targets.
Q But how does FISA --
GENERAL HAYDEN: FISA involves the process -- FISA involves marshaling
arguments; FISA involves looping paperwork around, even in the case of
emergency authorizations from the Attorney General. And beyond that,
it's a little -- it's difficult for me to get into further discussions
as to why this is more optimized under this process without, frankly,
revealing too much about what it is we do and why and how we do it.
Q If FISA didn't work, why didn't you seek a new statute that allowed
something like this legally?
ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had
discussions with members of Congress, certain members of Congress, about
whether or not we could get an amendment to FISA, and we were advised
that that was not likely to be -- that was not something we could likely
get, certainly not without jeopardizing the existence of the program,
and therefore, killing the program. And that -- and so a decision was
made that because we felt that the authorities were there, that we
should continue moving forward with this program.
Q And who determined that these targets were al Qaeda? Did you wiretap
them?
GENERAL HAYDEN: The judgment is made by the operational work force at
the National Security Agency using the information available to them at
the time, and the standard that they apply -- and it's a two-person
standard that must be signed off by a shift supervisor, and carefully
recorded as to what created the operational imperative to cover any
target, but particularly with regard to those inside the United States.
Q So a shift supervisor is now making decisions that a FISA judge would
normally make? I just want to make sure I understand. Is that what
you're saying?
GENERAL HAYDEN: What we're trying to do is to use the approach we have
used globally against al Qaeda, the operational necessity to cover
targets. And the reason I emphasize that this is done at the operational
level is to remove any question in your mind that this is in any way
politically influenced. This is done to chase those who would do harm to
the United States.
Q Building on that, during --
Q Thank you, General. Roughly when did those conversations occur with
members of Congress?
ATTORNEY GENERAL GONZALEZ: I'm not going to get into the specifics of
when those conversations occurred, but they have occurred.
Q May I just ask you if they were recently or if they were when you
began making these exceptions?
ATTORNEY GENERAL GONZALEZ: They weren't recently.
MR. McCLELLAN: The President indicated that those -- the weeks after
September 11th.
Q What was the date, though, of the first executive order? Can you give
us that?
GENERAL HAYDEN: If I could just, before you ask that question, just add
-- these actions that I described taking place at the operational level
-- and I believe that a very important point to be made -- have intense
oversight by the NSA Inspector General, by the NSA General Counsel, and
by officials of the Justice Department who routinely look into this
process and verify that the standards set out by the President are being
followed.
Q Can you absolutely assure us that all of the communications
intercepted --
Q Have you said that you -- (inaudible) -- anything about this program
with your international partners -- with the partners probably in the
territories of which you intercept those communications?
ATTORNEY GENERAL GONZALEZ: I'm not aware of discussions with other
countries, but that doesn't mean that they haven't occurred. I simply
have no personal knowledge of that.
Q Also, is it only al Qaeda, or maybe some other terrorist groups?
ATTORNEY GENERAL GONZALEZ: Again, with respect to what the President
discussed on Saturday, this program -- it is tied to communications
where we believe one of the parties is affiliated with al Qaeda or part
of an organization or group that is supportive of al Qaeda.
Q Sir, during his confirmation hearings, it came out that now-Ambassador
Bolton had sought and obtained NSA intercepts of conversations between
American citizens and others. Who gets the information from this
program; how do you guarantee that it doesn't get too widely spread
inside the government, and used for other purposes?
Q And is it destroyed afterwards?
GENERAL HAYDEN: We report this information the way we report any other
information collected by the National Security Agency. And the phrase
you're talking about is called minimization of U.S. identities. The same
minimalizationist standards apply across the board, including for this
program. To make this very clear -- U.S. identities are minimized in all
of NSA's activities, unless, of course, the U.S. identity is essential
to understand the inherent intelligence value of the intelligence
report. And that's the standard that's used.
Q General, when you discussed the emergency powers, you said, agility is
critical here. And in the case of the emergency powers, as I understand
it, you can go in, do whatever you need to do, and within 72 hours just
report it after the fact. And as you say, these may not even last very
long at all. What would be the difficulty in setting up a paperwork
system in which the logs that you say you have the shift supervisors
record are simply sent to a judge after the fact? If the judge says that
this is not legitimate, by that time probably your intercept is over,
wouldn't that be correct?
GENERAL HAYDEN: What you're talking about now are efficiencies. What
you're asking me is, can we do this program as efficiently using the one
avenue provided to us by the FISA Act, as opposed to the avenue provided
to us by subsequent legislation and the President's authorization.
Our operational judgment, given the threat to the nation that the
difference in the operational efficiencies between those two sets of
authorities are such that we can provide greater protection for the
nation operating under this authorization.
Q But while you're getting an additional efficiency, you're also
operating outside of an existing law. If the law would allow you to stay
within the law and be slightly less efficient, would that be --
ATTORNEY GENERAL GONZALEZ: I guess I disagree with that
characterization. I think that this electronic surveillance is within
the law, has been authorized. I mean, that is our position. We're only
required to achieve a court order through FISA if we don't have
authorization otherwise by the Congress, and we think that that has
occurred in this particular case.
Q Can you just give us one assurance before you go, General?
ATTORNEY GENERAL GONZALEZ: It depends on what it is. (Laughter.)
Q Can you assure us that all of these intercepts had an international
component and that at no time were any of the intercepts purely
domestic?
GENERAL HAYDEN: The authorization given to NSA by the President requires
that one end of these communications has to be outside the United
States. I can assure you, by the physics of the intercept, by how we
actually conduct our activities, that one end of these communications
are always outside the United States of America.
END 9:02 A.M. EST
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