U.S. ‘No Less Safe’ After Spy Policy Change, Gonzales Says
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RAY SUAREZ: Attorney General Gonzales, welcome to the program.
ALBERTO GONZALES, U.S. Attorney General: It’s good to be with you.
RAY SUAREZ: Why did the administration change its policy regarding the operation of warrantless surveillance?
ALBERTO GONZALES: Well, after the attacks of Sept. 11, the president made a decision that we needed to do everything we could within the law and the Constitution to protect this country. He made the decision that we needed to engage in this kind of electronic surveillance on the enemy on a limited basis, exercising his authority under the Constitution.
And, about two years ago, we began working to see whether or not, was there another way to bring the program under the FISA court? That’s something that’s been discussed with the Congress for ever since the program has been disclosed.
We worked very hard at trying to find a way to have this tool available to the president, but also fit within the parameters of the FISA statutes. And it wasn’t until the very moment that the judge approved the application that we were convinced that, in fact, we could achieve that goal.
I think this ought to disabuse people of the notion that this president would nilly-willy exercise his inherent power under the Constitution. He exercised his authority under the Constitution as an initial matter, because he felt it was necessary to protect this country.
We now have provided an alternative way to protect this country, and therefore he’s made the decision it’s no longer necessary for the president to exercise his inherent constitutional authority, that he can continue to protect this country under the parameters of the FISA statute.
And one of the things that’s very, very important for the American people to understand is, based upon the advice of the director of national intelligence, based upon the advice of the National Security Agency, this country is no less safe today than we were under the terrorist surveillance program authorized by the president.
It is very important for the president to be comfortable, in pursuing this new route, to know that this country is no less safe. And that’s the reason why the president made the decision. It was now an appropriate way to go forward under the FISA statute.
The reasons behind the change
RAY SUAREZ: At the time when the administration was first asked to defend this program, there was insistence from the executive branch that the president needed this authority, that the FISA courts presented a system that was too cumbersome and didn't allow investigations to move ahead quickly when the moment demanded. What's changed now that you're at peace with submitting these requests to the court?
ALBERTO GONZALES: I can't get into much details about the application. We spent a great deal of time thinking about ways that we could craft the legal arguments in a way that would satisfy the statute, that would satisfy a judge on the FISA court.
We obviously wanted to -- we obviously had to take those arguments and look at the operational capabilities of the NSA. And those had to emerge together, so that we could have a system, an operational procedure that would still meet the safeguards that the president wanted, which was to ensure the national security of our country, but could fit within the framework of the FISA statute.
That took some period of time. It took a lot of hard work by lawyers at the Department of Justice, by operators and intelligence officers out at the National Security Agency.
But now, today, we are at a place, and we are very confident that we can continue to gather electronic surveillance of communications, one outside the United States, where we have reasonable grounds to believe that a party to the call is a member or agent of al-Qaida or of an affiliate organization.
The president's authority
RAY SUAREZ: Just to remind people, FISA stands for Foreign Intelligence Surveillance Act. And this court operates under that act, seeing requests for this kind of surveillance.
So you wouldn't call it, based on what you've just said, what it's been called over the last two days, an about-face, a reversal, a retreat, none of these things? This was your call, the administration's call.
ALBERTO GONZALES: No question about it. The timing of the disclosure of this wasn't driven by litigation or concerns about a new Congress. It was simply driven by the signature by the judge that, in fact, this satisfied all the requirements under FISA.
Again, I think this is a sign of a mature and a wise commander-in-chief who exercises his reservoir of good -- of inherent authority under the Constitution only when he needs to. He needed to do it five years ago. He no longer needs to do it in this particular case. And I think that's what the American people appreciate.
RAY SUAREZ: So have you, as the administration's chief legal officer, advised the president that this is still very much within his powers to do? So it's not a question of rethinking what his powers are; you just no longer choose to do this without warrants?
ALBERTO GONZALES: We continue to believe -- I continue to believe that the president does have the inherent authority to engage in electronic surveillance of the enemy during a time of war. And that's what we're talking about here.
And that's borne out by the history and tradition of this country. Previous presidents have done this during a time of war. It's certainly consistent with circuit courts of appeals decisions that have looked at this issue.
And so, yes, I very much believe that the president has the authority under the Constitution and also has the supplemental authority under the authorization use of military force.
But all that, we can put that aside now, because people have been saying, "You need to do it under FISA. You need to do electronic surveillance under FISA." OK, we are now doing it under FISA.
But to answer your question, of course, we still stand by the position that the president had the authority and that everything that's been done today was, in fact, lawful.
RAY SUAREZ: Will officers of the administration go into court to continue to defend the legality of this system, even though you're not using it any more?
ALBERTO GONZALES: Well, again, it would depend on the issues with respect to every particular case. Some cases, for example, only ask for injunctive release, which is to stop the program from going forward under the president's authority.
Those cases we were going to argue have now been rendered moot, because, in fact, the program is not going forward under the president's reauthorization. Those cases are now gone.
The other cases are asking for damages based upon previous action. Those are a little bit more complicated. We still believe we have some arguments that can be made in those kinds of cases. Ultimately, of course, it's going to be up to the courts to decide what's the right results here, but, again, we feel confident in our legal position.
The Senate's right to oversight?
RAY SUAREZ: This week, members of the Senate Judiciary Committee, from both parties, asserted their right to oversight of an executive branch program. And they wanted to see documents that are being generated by this relationship between you and the FISA court. Will they be able to see them?
ALBERTO GONZALES: Well, we're working on that question right now. We obviously have already provided full briefings to the intel committees or their staffs, with respect to this program, both in the House and the Senate. A full briefing was provided to Sen. Specter. We offered one to Chairman Leahy, which he declined. We're hopeful that he will take us up on that invitation.
Obviously, it's easier to understand the legal authorities here by looking at the documents. The FISA court, who's issued the order, obviously has some equities in this decision.
So we're looking at the issues to try to be as accommodating as we can, to educate the Congress about these authorities. I'm, quite frankly, very proud of the application, because it reflects a lot of good work by the lawyers in the Department of Justice.
However, we need to be careful about ensuring the confidentiality of the document, because it talks about the operational details of the program. We want to be very, very careful that that does not become public, because, if it does, it will educate the enemy about our abilities to engage in electronic surveillance.
RAY SUAREZ: Well, you mentioned that the FISA court has some equity here. The judge currently running FISA, Judge Colleen Kollar-Kotelly, said she has no problem with giving members of the Senate the documents, as long as she gets the executive branch clearance.
ALBERTO GONZALES: And we're working through that as we speak.
Results from previous surveillance
RAY SUAREZ: Can you look back at the last five years, operating it as the administration asserted it was its right to do, can you look back at some successes? Have there been any prosecutions or captures of people who were actively engaged in targeting the United States, because you were able to do this surveillance without warrants?
ALBERTO GONZALES: What I can point you to, and your viewers to, is testimony from Gen. Hayden, head of the CIA, and from Bob Mueller, the director of the FBI.
These are the leaders of the intelligence community for our country who've testified before the Congress that the program has been invaluable, has been very, very helpful in helping us capture terror suspects, and has been helpful in stopping other attacks against the United States and the United States' interests.
And so I can't get into, for security reasons, specific cases, but I would commend to you and the testimony of our intelligence community leaders who have testified before the Congress that this has been a very valuable program.
RAY SUAREZ: But to be clear, for my own self, you're saying that this is evidence or information or surveillance that could not have been undertaken in any other way, even using the FISA court, the way your relationship was in the past?
ALBERTO GONZALES: I can't answer that question with definitiveness, because one of the problems with FISA is, is it is not as nimble and as quick as we need to be, given certain circumstances.
And so you take a chance that information that may be available one minute may not be available five minutes from now or even a day from now or a week from now. Maybe it will be available; I don't know.
And so to answer your question, I would have to know whether or not it's still available, as to whether or not FISA would have been just as effective.
We can't take the chance, however. I mean, sometimes there's information that we know is there. And it may be gone in a matter of minutes or maybe gone in a matter of hours or days.
And, therefore, that's the reason why this president believed it was absolutely necessary to utilize this tool, because we have to remember that the attacks -- the attackers that participated in the 9/11 attack, they were here in this country, they were communicating within this country, they were communicating outside this country.
We had some hints about it, but we really didn't know. And so that's why the president believed that having this kind of capabilities after the attacks of 9/11 were absolutely essential to the national security of our country.
RAY SUAREZ: Well, you mentioned the time critical nature of these investigations. But didn't FISA allow you to go ahead with the surveillance and then request a warrant or request clearance for that surveillance up to 72 hours after it was undertaken?
ALBERTO GONZALES: There is an emergency authorization provision under FISA. And I have the authority to authorize surveillance without getting a signed order from the court.
But before I do so, under the statute, I must be completely satisfied that all the requirements of FISA have been satisfied. That takes a period of time, because the statute has certain restrictions and requirements that have to be met.
And so I'm not going to authorize an emergency authorization without being absolutely sure that all the requirements of FISA can be met and that, when we submit an application 72 hours thereafter, that it will be approved by a FISA court.
RAY SUAREZ: U.S. Attorney General Alberto Gonzales, thank you.
ALBERTO GONZALES: Thank you.