Senate Questions Gonzales on Spy Policy Change
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SEN. PATRICK LEAHY (D), Vermont: Attorney General, there was some interest in your testimony.
RAY SUAREZ: Today, Judiciary Committee senators demanded more details from Attorney General Alberto Gonzales about the Bush administration’s change of course on its wiretapping of international communications with at least one domestic connection.
SEN. ARLEN SPECTER (R), Pennsylvania: The United States and the administration have paid a heavy price for not acting sooner.
RAY SUAREZ: Warrants to eavesdrop now will be sought from the special court originally created to approve international wiretaps, under the Foreign Intelligence Surveillance Act. It’s called the FISA court.
SEN. RUSS FEINGOLD (D), Wisconsin: That is a stunning and, I would say, long overdue change of direction.
RAY SUAREZ: In a letter yesterday to the Judiciary Committee’s chairman, Democrat Patrick Leahy, and the committee’s ranking member, Republican Arlen Specter, Attorney General Gonzales wrote, “Any electronic surveillance that was occurring will now be conducted subject to the supervision of the Foreign Intelligence Surveillance Court.”
Begun in the immediate aftermath of the 9/11 attacks, the program ran more than five years without court supervision. The administration said the inherent authority of the president to protect the nation made warrants unnecessary.
The president vigorously defended the eavesdropping in public.
GEORGE W. BUSH, President of the United States: It has been effective in disrupting the enemy while safeguarding our civil liberties. This program has targeted those with known links to al-Qaida.
RAY SUAREZ: But the program will no longer exist in its old form, run by the executive branch alone, according to the attorney general.
ALBERTO GONZALES, U.S. Attorney General: There will be no, quote, “terrorist surveillance program.” All electronic surveillance, as defined under FISA, that will all be done under an order issued by a judge on the FISA court.
RAY SUAREZ: But the attorney general repeatedly said this administration didn’t believe it was required to get warrants from the FISA court.
ALBERTO GONZALES: We commenced down this road five years ago because of the belief that we could not do what we felt was necessary to protect this country under FISA. That is why the president relied upon his inherent authority under the Constitution.
RAY SUAREZ: New York Democrat Chuck Schumer had been a critic of the secret surveillance program.
SEN. CHUCK SCHUMER (D), New York: You don’t think you’re legally required to go to the FISA court, that is correct? Correct? Just please answer yes or no.
ALBERTO GONZALES: Senator, we believe — my belief is, is that the actions taken by the administration, by this president, were lawful in the past, but moving forward, our electronic surveillance collection is going to be conducted under FISA.
RAY SUAREZ: Schumer asked about the breadth of the warrants now sought from the court.
SEN. CHUCK SCHUMER: Are the new FISA orders directed at individuals, at entire groups of individuals, or even broader brush than that?
ALBERTO GONZALES: Senator, I am not at liberty to talk about those kinds of specifics because it would require me to get into operational details that I think I should not do in this session.
SEN. CHUCK SCHUMER: I’m not asking you…
ALBERTO GONZALES: What I can tell you, Senator, is that they meet the legal requirements under FISA.
RAY SUAREZ: Other than that, the attorney general would give no further details on the surveillance warrants in open committee.
Reasons for the reversal
RAY SUAREZ: For more on the president's terrorism surveillance program and what new court supervision might mean to it, we're joined by Kate Martin, director of the Center for National Security Studies, and David Rivkin, an attorney who served in the administrations of President Reagan and in the first President Bush.
Kate Martin, what reason did the Bush administration give to allow judicial oversight now, after five years, after insisting they didn't need it?
KATE MARTIN, Center for National Security Studies: They didn't give very much of a reason, other than it made sense. And their failure to give a reason raises a lot of suspicion.
I think that one obvious reason is that the attorney general was going to face severe criticism today for the first time from a Democratic Congress. I suspect, in addition, that they were facing difficulties with the phone companies who had been assisting them in violating the law in conducting warrantless surveillance.
And one way of addressing those concerns was to go get an order from the FISA court. But they didn't explain why, after all this time, they finally went to the FISA court.
RAY SUAREZ: Why do you think they did it, David Rivkin?
DAVID RIVKIN, Attorney: Not for the same reasons. They've done it for a couple of reasons.
And, look, this whole exercise was not done out of some sense of machismo and desire to be unilateral. The FISA court's operations post-September 11 were inadequate to cope with speed and agility with the surveillance needs. That's why the president ordered it. It is lawful; it was lawful.
But it's always preferable to go for a particular statutory framework that Congress provided, both with considerations of comity, also because you can use the information you derive from it in context of criminal trials.
But very importantly -- and this gives lie to the claims that it's done because of the results of November 11 -- since mid-2005, the administration has been negotiating, senior officials in the Department of Justice has been negotiating with the FISA court to try to come up with innovative solutions within the FISA framework. And those negotiations, which have gone over a year now, have finally borne fruit last week.
So 2005, not post-November 7 elections. And they came up with innovative solutions. It's very important -- I've been told by several administration officials that the operational consequences of a new approach are the same as under the old approach.
What depresses me, though, is the people and the critics who have been saying for years now, "Go for FISA, go for FISA, work with the judges, that's all we want, we're not against surveillance," you heard them already rejiggering their criticism.
And I would bet you that next week the Democrats are going to be saying, "Well, it's not good enough that FISA judges blessed it. We also want to look more into it." It's very cynical, in my opinion.
RAY SUAREZ: Well, now that this has been done, and you heard Chuck Schumer trying to get the attorney general to talk about it, did they concede the legal point and agree with the majority on the Judiciary Committee that the executive branch doesn't have the authority to do what it was doing?
DAVID RIVKIN: Absolutely not. Both the letter and all the briefings of the reporters indicate the administration's position was and is that the president has plenary power as chief executive and commander-in-chief to engage in this surveillance, that he's not required to go -- in this particular situation, this is battlefield intelligence gathering -- to go for the FISA context.
So they've not surrendered any constitutional authority. And, again, this is very ironic. For years they've been asked to take the step they've taken. As soon as they've taken the step, everybody in Washington, including a lot of media, immediately try to figure out who lost, who gained.
Why don't we just give them the benefit of the doubt and say, look, you work things out, we proceed in a way that protects the American people, and, yet, you can get judicial supervision, which is what the critics wanted all along? What's not to like?
RAY SUAREZ: What's not to like?
KATE MARTIN: Well, there's a lot of information that the administration has refused to disclose, including telling Congress or the press or the public what the order is really about and whether or not it even meets the usual understanding of a warrant.
And that's important, because the attorney general said yesterday and today that what they did was get a creative, innovative order from the court and that it wouldn't have been possible to do so under a, quote, "strict interpretation of the FISA." This from an administration that, of course, campaigned against judges who don't believe in a strict construction of the law.
But the question it raises is, do we have a warrant where the judge is making an individualized determination that the person who's going to be listened to is suspected of being a terrorist? Or do we have something else, where they're listening to lots of people and the judge isn't making individualized determination?
We don't know the answer to that question, and they were asked that question five times yesterday during that press briefing, refused to answer it. They refused to answer today.
And the whole -- and Rep. Wilson said that her understanding -- a Republican -- was that it was quite likely that they did not have an individualized warrant. And then you have the question that you also raised about the president's claim of inherent authority, which is, "And if the court turns us down next time, we will go back to doing it without a warrant."
The legal authority
RAY SUAREZ: Well, could they go back to doing it the way they insist they still have the legal authority to do?
DAVID RIVKIN: Of course they can. But let me just emphasize one thing, because according to Kate there's something sinister about not disclosing those details. Let's be clear.
From the inception of FISA, details like that, highly classified details of applications to secure, actually called orders, the same as warrants, and the nature of them, duration, never been disclosed. In fact, the Democrats have criticized the president for not going for a FISA regime, almost ritualistically kept saying, "This is safe, this is secure, there are no leaks, judges do not leak."
And yet, all of a sudden, I hear Kate and others suggesting that the failure to describe, in a public hearing, mind you, not in a traditional classified hearing to intelligence committees but in an open hearing to disclose what those orders are, is somehow aberrational. That cannot be true.
RAY SUAREZ: Just to clarify, the judge in the case has said -- the judge who's supervising the FISA court now -- has said that she would accede to Congress's request and give them documents that they want to see, but it's up to the Justice Department. And the attorney general says...
KATE MARTIN: And the attorney general said he wouldn't agree to show it to Congress even in a classified setting yet. And there are two separate questions.
No one's asking, who are the individuals who are going to be listened to? The question is, the Justice Department made some -- in their words -- creative and innovative legal arguments about how you interpret FISA. Those arguments ought to be made public, and they don't have any classified details in them.
DAVID RIVKIN: No, but those arguments cannot be made public, with all due respect, Kate, because these are not pure legal arguments. The nature of those arguments would show exactly how we're processing different types...
What legal arguments could reveal
RAY SUAREZ: Well, let me follow up about that, because Kate Martin suggests that just to say what the machinery, what the mechanics are wouldn't involve talking about specific suspects, specific cases, and operational details.
DAVID RIVKIN: But it would reveal, with all due respect, the nature of legal arguments, which reveal our conceptual approaches to surveillance, the search patterns.
With all due respect, it's very ironic. For years, the critics have been saying, "We trust Article III judges, independent judiciary to validate the judgment of the executive branch." Now all of a sudden it's not good enough.
We had an Article III judge acting in good faith, looking at the administration's argument. Look, we as lawyers go to court and make arguments, sometimes innovative, sometimes traditional. Basically, if a court buys that argument, that typically is good enough. Now, all of a sudden, that's not good enough.
RAY SUAREZ: Quick response. Quick response.
KATE MARTIN: We have one judge. We are entitled to know whether or not they argued that they don't need individualized probable cause determinations made by a FISA court judge. And we don't have an answer to that question. That doesn't reveal any secret, and we're entitled to an answer to that question.
RAY SUAREZ: Before we go, let me get two quick thoughts from you. This was on track to get further judicial review. Will it get any, or is it rendered moot by the change in administration policy?
KATE MARTIN: Part of those cases, it's not rendered moot, because they challenge other programs, data-mining programs which are not addressed and not affected by the attorney general's...
DAVID RIVKIN: Most of the cases would be mooted but not all, but, quite frankly, the administration was going to win all of those cases, despite that one loss in Detroit at the district court level. This is not about hazards of litigation.
RAY SUAREZ: David Rivkin, Kate Martin, thank you both.
DAVID RIVKIN: Good to be with you.
KATE MARTIN: Thank you.