The Wiretap Hearings, Part III

About halfway through the transcript so far. You can read the whole thing here. Or read my posts on it here: Part I and Part II.

Great line here by Gonzales responding to questions from Sen. Cornyn:

CORNYN: And some at (inaudible) “Well, has the Foreign Intelligence Surveillance Act, which was passed in 1978, authorized the president to conduct this particular program?”

I have a couple of problems with that question stated that way.

Number one, the technology has surpassed what it was in 1978, so our capacity to gain actionable intelligence has certainly changed.

And the very premise of the question suggests that the president can only exercise the authority that Congress confers. And when people talk about the law, the law that pertains to this particular question is not just the Foreign Intelligence Surveillance Act, but it includes the Constitution and the authorization for use of military force.

Would you agree with that, General Gonzales?

GONZALES: Senator, you raised a very important point. People focus on the Foreign Intelligence Surveillance Act and say, “This is what the words say and that’s the end of it; if you’re not following it in total, you’re obviously in violation of the law.”

That is only the beginning of the analysis. You have to look to see what Congress has done subsequent to that. And then, of course, you have to look at the Constitution.

There have been many statements today about “No one is above the law.” And I would simply remind — and I know this doesn’t need to be stated — but no one is above the Constitution either, not even the Congress.

And then in response to the press continuing description of these wiretaps as domestic:

GONZALES: I think people who call this a domestic surveillance program are doing a disservice to the American people. It would be like flying from Texas to Poland and saying that’s a domestic flight. We know that’s not true. That would be an international flight. And what we’re talking about are international communications.

After which Sen. Cornyn talks about the Presidents inherent authority to wage war on our enemies:

CORNYN: With regard to the authorization of the use of military force, some have questioned whether it was actually discussed in Congress whether surveillance of international phone calls between Al Qaida overseas and here, whether that was actually in the minds of individual members of Congress when they voted to support the authorization of the use of military force.

It strikes me as odd to say that Congress authorized the commander in chief to capture, to detain, to kill, if necessary, Al Qaida, but we can’t listen to their phone calls and we can’t gather intelligence to find out what they’re doing so we can prevent future attacks against the American people.

UPDATE

Important exchange here regarding the line of questions that come from the lefties such as “why didn’t you just ask congress to change the law?”

HATCH: You were somewhat criticized here in some of the questions that your argument that the authorized use of military force is a faulty argument, because the FISA act does not really talk about “except as authorized by statute.”

But you pointed out that Section 109, or, if you want to be more specific, Title 50, Chapter 36 of Chapter 1, 1809 does say that “a person is guilty of an offense if he intentionally engages in electronic surveillance under cover of law except as authorized by statute.”

GONZALES: That is the main criminal prohibition against engaging in electronic surveillance, except as otherwise provided by FISA or except as otherwise provided by statute.

HATCH: Now, this authorized use of military force enabled you, quote, “to use all necessary and appropriate force against the nations, organizations or persons the president determines planned, authorized, committed or aided the terrorist attacks.” Is that correct?

GONZALES: This is a very important point, Senator.

Think about it. The authorization doesn’t identify — specifically never mentions the word “Al Qaida.” It authorizes the president to engage in “all necessary and appropriate force to identify those he determines” — who the president determines. And the president is not able to do that without information, without intelligence, without the kind of electronic surveillance we’re talking about today.

HATCH: That’s right.

As someone who helped to write the original Patriot Act, I can’t help but express the awareness of those of us around here that here we are, well over a month after the expiration of the Patriot Act, and we keep renewing it from month to month because we can’t get Congress to really agree on what the changes should be. Is that a fair assessment?

GONZALES: Well, what I will say is I think the tools of the Patriot Act are important, and I hope that they are reauthorized.

HATCH: But the reason I’m bringing that up is because at one time, at least one report was is that one of these eight members was asked — who had the program disclosed to them — or at least remarked that he didn’t think that a statute could be passed to resolve these issues.

GONZALES: I don’t want to attribute to any particular member that statement.
What I will say is that…

HATCH: You don’t have to do that, but is that true?

GONZALES: There was a consensus that pursuing the legislative process would result likely in compromising the program.

HATCH: In other words, it’s not easy to get things through 535 members of Congress, 435 in the House and 100 in the Senate.

HATCH: Now, I know that you love the Congress and will not find any fault with any of us…

GONZALES: Sir, you’ve been at this a little bit longer than I have. But it’s certainly been my experience that it’s sometimes difficult.

And another one regarding Clinton’s use of his authority:

HATCH: Well, it’s important, General, to bring out that President Clinton’s administration ordered several warrantless searches on the home and property of a domestic spy, Aldrich Ames.

That’s true, isn’t it?

GONZALES: That is correct, sir.

HATCH: That was a warrantless set of searches.

GONZALES: That is correct, sir.

HATCH: And the Clinton administration also authorized the warrantless search of the Mississippi home of a suspected terrorist financier. Is that correct?

GONZALES: I think that is correct, sir.

HATCH: The Clinton Justice Department authorized these searches because it was the judgment of Deputy Attorney General Jamie Gorelick, somebody I have great admiration for, that — and let me quote her. It has been quoted before, but I think it’s worth quoting it again. This is the deputy attorney general of the United States in the Clinton administration.

The president, quote, she said, “The president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” Now this is against the domestic people.

“And the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

You’re aware of that quote.

GONZALES: I am aware of it, yes, sir.

HATCH: But if the president has inherent ability to surveil American citizens in national security cases during peacetime, I guess what’s bothering me, how can it be that President Bush is precluded, as some have argued, from surveilling Al Qaida sources by intercepting foreign calls into this country to people who may be Al Qaida or affiliated with Al Qaida or affiliated with somebody who is affiliated with Al Qaida?

How can that be?

GONZALES: Senator, I think that the president’s authority as commander in chief obviously is stronger during a time of war. If the authorization to use military force did not exist or was repealed or was not interpreted in the way that we are advocating, then it seems to me you’re teeing up a fairly difficult constitutional question as to whether or not Congress can constitutionally limit the president’s ability to engage in electronic surveillance of the enemy during a time of war.

HATCH: Well, we were aware of the Clinton administration’s approaches. I don’t know of any Republicans who raised Cain about that.

Walter Dellinger, the former head of the office of legal counsel under President Clinton, in a final opinion published on July 14th, 1994, wrote, quote, “Specifically, we believe that the prohibition on destruction of aircraft would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities.

“We note specifically that the application of the provision to acts of the United States military personnel in a state of hostilities could lead to absurdities. For example, it could mean in some circumstances that military personnel would not be able to engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution.”

General, do you believe that Walter Dellinger, who is now a critic of the president’s authorization of wartime surveillance of Al Qaida was correct in 1994?

GONZALES: Sir, I haven’t studies that opinion in a while, but it sounds like it would be correct, in my judgment.

UPDATE II

Ok this is something I was not aware of. Apparently if an emergency FISA warrant is done, within the 72 hour period, and one of the judges deems that there is not enough probable cause to ok the warrant then the target of that warrant must be notified. Whoa nelly.

GRASSLEY: Thank you.

It appear to me that FISA generally requires that, if surveillance is initiated under the Emergency Authorization provisions and an order is not obtained from the FISA Court, that the judge must, quote, “cause to be served on any U.S. person named in the application and on such other U.S. persons subject to electronic surveillance as the judge and the court,” quote, “believes warranted the fact of the application; two, the period of the surveillance; and, three, the fact that during the period information was or was not obtained.”

So, that brings these questions, if that is the factual reading of the statute.

GRASSLEY: Does this explain the caution and the care and the time that is used when deciding whether to authorize 72-hour emergency surveillance?

And let me follow up. And then the possibility that if you got it wrong, could you wind up tipping off an enemy? In this case, we’re worried about Al Qaida terrorists.

Would this interfere with the president’s ability to establish this vital early warning system under FISA?

And is this one of the reasons then — and this is the last question — is this one of the reasons why FISA is not as nimble and quick a tool as you need to combat terrorist threats and that members of this committee think ought to be used to a greater extent?

GONZALES: Senator, those are all very good questions.

The reason we’re careful about our work in seeking a FISA is that we want to get it right. We absolutely want to get it right in every case.

And we have career professionals working hard on these kinds of issues. And we want to get it right.

It is true that if I give an emergency authorization and an order is not obtained, my understanding of the statute is that the presumption is that the judge will then notify the target of that surveillance during that 72-hour period.

We would have the opportunity and make arguments as to why the judge should not do that. But in making those arguments, we may have to disclose information certainly to the target.

And if we fail, the judge may very well notify the target that they were under surveillance. And that would be damaging. That could possibly tip off a member of Al Qaida or someone working with Al Qaida that — and we have reasons to be concerns about their activities.

And so it is one of the many reasons why we take such great care to ensure that when I grant an emergency authorization, that all the requirements of FISA are met.

The reason we have such a high approval rate at the FISA Court is not because the FISA Court is a rubber stamp. It’s because we do our work in ensuring that those applications are going to meet the requirements of the statute.

UPDATE III

Good exchange here about the Whistleblower act and the treasonous behavior of those who went to the press, cough Rockefeller cough.

CORNYN: Attorney General Gonzales, Chairman Specter had to step out, but he asked me to proceed after Senator Durbin, and I’m happy to do that, so we can move on. If an employee of the National Security Agency has a concern about the legality of what they’re being asked to do, is it — are they authorized to have a press conference or to otherwise leak that information to outside sources?

GONZALES: Senator, I think there are laws that prohibit the disclosure of classified information. I think there might be other ways that maybe would — that would certainly be more appropriate.

CORNYN: Let me suggest one to you.

CORNYN: 1998, Congress passed the Intelligence Community Whistleblower Protection Act, which provides in part that an employee of the DIA, The National Imagery and Mapping Agency, the National Reconnaissance Office or the National Security Agency or a contractor of any of those agencies who intends to report to Congress a complaint about the legality of the program, that they can report that to the inspector general of the Department of Defense or to the leadership of the Intelligence Committees in the United States Congress.
Would you consider that to be a more appropriate place for a so- called whistleblower to report their concerns?

GONZALES: Yes, sir, I would.

CORNYN: Well, at the very least, there would be an opportunity for those officials to evaluate the complaint of this individual, and we wouldn’t risk the disclosure of highly classified information or programs that are collecting intelligence.

GONZALES: No question about it.

The danger or problem of going to the media as an initial matter is that you have some people, I think, whose motivation, I think can be questioned in terms of why are they doing that.
And when they go out an talk to the public about a highly classified program, they harm the national security of this country.

I think Congress realized that when they passed the statute that you just described, to try to provide an avenue for those people who legitimately are concerned about perhaps wrongdoing, that they have an avenue to pursue to express their grievances and to do so in a way that we don’t jeopardize the nation’s secrets.

And another excellent summation of why the Administration did not use FISA:

CORNYN: First of all, if the NSA wants to listen to communications between terrorists abroad that are wholly located in some other country, they can do that without a warrant, can they not?

GONZALES: Whether or not FISA applies depends on the answer to basically four key questions: Who is the target? Primarily, we’re concerned about whether or not the communication involves a U.S. person.
Where is the target? Primarily we’re concerned whether or not the person is in the United States.
Where is the acquisition taking place?

And then, finally, what are you trying to acquire? Is it wire communication? Is it radio communication?
And so the answer as to whether or not FISA would apply with respect to a particular communication primarily depends upon answering those kinds of questions.

CORNYN: Thank you for the precise answer. But, as a general matter, if the persons are located in a foreign country, and they are not American citizens and the communications are taking place within that foreign country, then FISA does not require the issuance of a warrant.

GONZALES: As a general matter, if you’re talking about non-U.S. persons outside the United States and, certainly, if the acquisition is outside the United States, you don’t have to worry about FISA.

CORNYN: Isn’t it true that the problem that this program has tried to address, the gap in FISA that it tries to address, is that, in order in order to got a warrant under FISA, the government must have grounds to believe that the U.S. person it wishes to monitor is a foreign spy or terrorist?

And, even if a person is here on a student or tourist visa or no visa, the government can’t get a warrant to find out whether they are a terrorist; they must already have reason to believe they are one?

GONZALES: Well, certainly, to obtain an order from the FISA Court, the court has to be satisfied that there’s probable cause to believe that the target is either a foreign power or an agent of a foreign power and probably cause to believe that the facility being targeted is actually being used or about to be used by a foreign power or an agent of a foreign power.

CORNYN: Stated another way…

GONZALES: OK.

CORNYN: The problem with FISA, as written, is that the surveillance it authorizes is unusable to discover who is a terrorist, is distinct from eavesdropping on known terrorists.

Would you agree with that?

GONZALES: That would be a different way of putting it, yes, sir.

CORNYN: You would agree with that statement?

GONZALES: Yes, sir.

CORNYN: So the particular program that’s been debated here and the authority that the National Security Agency has to conduct it is filling a gap that exists in our intelligence-gathering capabilities.

Is that an accurate description?

GONZALES: I think we quickly realized, after the attacks of 9/11, that the tools that we had traditionally been using were insufficient.

And this was the opinion of the intelligence community. And that’s why the president authorized this program. It’s because we did have vulnerabilities into our access to information about the enemy.

UPDATE IV

More about the nuts and bolts that go into getting a “emergency warrant”

BROWNBACK: In 1999, the NSA began monitoring a known Al Qaida switchboard in Yemen. They relayed calls from Osama bin Laden to operatives all over the world. Surveillance picked up the phone number of a Khalid in the United States, but the NSA didn’t intercept those calls, fearing it would be accused of, quote, “domestic spying.”

After 9/11, investigators learned that Khalid was Khalid al- Mihdhar, then living in San Diego under his own name, one of the hijackers who flew American Airlines Flight 77 into the Pentagon.

He made more than a dozen calls to the Yemen house where his brother in law lived.

NBC News called this, quote, “one of the missed clues that could have saved 3,000 lives.”

It’s a very real thing and very real thing for us today — and one that, had we been operating that effectively prior to 9/11, could have possibly saved thousands of lives.

Mr. Attorney General, we continue to hear — and I certainly appreciate the need for expediency in carrying out electronic surveillance. And you’ve mentioned that getting a FISA warrant is often a time-consuming procedure.
I wondered, could you go into some specificity for me, so I can hear this, how long that process generally takes? Just to the degree you can, without revealing information that’s classified, how long does this process take?

GONZALES: Well, it varies.

What I can say, Senator, is that we have, for a variety of reasons, some applications that have been pending for months, quite frankly.

Sometimes that’s a result because we can’t get sufficient information from the FBI or NSA in order to satisfy the lawyers at the department that, in fact, we can meet the requirements of the FISA act.

Sometimes it’s a situation where priorities — with each passing day, renewals expire on very important programs, so we then have to prepare a renewal package to submit to the FISA court.

And that means other FISA applications that our lawyers have been working on kind of get pushed to the side as they work on the more important cases.

So there are a variety of reasons why it takes some time to get a FISA application approved.

GONZALES: If you want me to get into a more down-in-the-weeds discussion…

BROWNBACK: I would. What is it that takes so much time in these FISA applications?

GONZALES: Well, of course, we can’t begin surveillance just based on a whim by someone, say, at the FBI. There has to be a reason to believe that all of the standards of the FISA statute can be satisfied. We have to know that a FISA court judge is going to be absolutely convinced that this is an agent of a foreign power, that this facility is going to be a facility that’s going to be used or is being used by an agent of a foreign power.
The things that I have to approve, I have to, when I sign an application, we have to identify the target, we have to set forth the circumstances and the reasons that I believe that the target is a foreign power or an agent of a foreign power. I have to set forth the circumstances for why I believe that this facility is being used or about to be used by a foreign power or agent of a foreign power.

We have to set forth in the application the minimization requirements that we intend to use. We have to set forth in the application, with specificity, the type of information we’re hoping to get and the type of facilities or communications that we’re targeting.

So those are just some of the things that I have to include in the application. The application has to be accompanied by a certification that is signed by a senior official of the administration who has national security responsibility. Normally it’s the FBI director. It could be the director of the CIA.

And so that person has to certify that, in fact, this is foreign intelligence information. That person has to certify that the primary purpose — a significant purpose of the surveillance is for foreign intelligence purposes. That person has to certify that normal investigative techniques or means are not otherwise available. And there are some other provisions that have to be certified.

So all those conditions, requirements, have to be met, even before I authorize verbally an emergency authorization, and it takes time. Even in a perfect world, even in an ideal case it’s going to take a period of time. And I’m not talking about hours. We’re normally talking about days, weeks. On the more complicated cases, again, sometimes months.

UPDATE V

Here our pet RINO, Sen. Specter, attempts to say that the use of force granted to the President against Al-Qaeda didn’t include use of force inside the US…..sigh

SPECTER: The resolution of September 14 did not add the words “in the United States” after the words, quote “appropriate force.” That was rejected to give the president the broad authority, not just overseas, but in the United States.

Isn’t that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?

GONZALES: Sir, I don’t know where that record is to reflect that that actually happened.

I think the CRS, Congressional Research Service, said that in the legislative history — and I may be wrong; it’s late — but I believe that they said there’s no record to indicate that that ever occurred, quite frankly.

I think, as I indicated in my opening statement, I think the American public, I think our soldiers, I think our courts ought to be able to rely upon the plain language passed by the Congress.

And there’s no question that the resolution talked about the president of the United States protecting Americans both here and abroad.

And we have to put it in context. We were just attacked here in this country, from folks within our country, communicating within our country.

It’s hard to imagine, as smart as you are, that you wouldn’t provide to the president of the United States the grantive authority to at least deal with a similar kind of threat to the one we just experienced.

Finally finished all 182 pages of the transcript and my opinion is that the AG handled himself well. You had the Senators asking the same question over and over and over, which was ridiculous. Then you had them making soundbite statements. When they finally got to some valid questions it was a relief, and the AG knocked them all out of the park.

Curt

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