Gonzales: Speed an issue in secretive wiretaps
Attorney General Alberto Gonzales
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WASHINGTON (CNN) -- Since 2001, the National Security Agency has been given the power to conduct wiretaps within the United States without first getting a court-issued warrant. President Bush has been criticized for ordering the practice, which he says is necessary for the war on terror.
Attorney General Alberto Gonzales spoke Monday with CNN's Soledad O'Brien about the president's decision to allow the surveillance strategy.
O'BRIEN: Did you advise the president that it was within his rights to go ahead and approve these wiretaps without a court order, sir?
GONZALES: There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in these kind of signals, intelligence of our enemy.
We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11 , constituted additional authorization for the president to engage in this kind of signals intelligence.
O'BRIEN: So you're saying that the Congress's vote to go ahead and use force was essentially an OK as well to wiretap people in the United States?
GONZALES: The Foreign Intelligence Surveillance Act, Soledad, provides that you must get a court order to engage in electronic surveillance ... except as otherwise authorized by Congress. We believe that other authorization by Congress exists in the authorization to use military force that was passed by the Congress in the days following the attacks of September 11, yes.
O'BRIEN: You mentioned that FISA, or the Federal Intelligence Security Act, and the other option, getting a warrant. Why not go either of those two routes? If you want the secret court, go the first way. And if you want to get a warrant, get a warrant?
GONZALES: Well, of course, as I've indicated, we're only required to get a court order to engage in this kind of surveillance if we're not otherwise authorized by Congress. We think that we were given permission under the authority to use military force. But in terms of why not use the authorities under the Foreign Intelligence Surveillance Act, we continue to use those authorities, they're very important in the war on terror.
But the Foreign Intelligence Surveillance Act was passed in 1978 and there have been tremendous changes in technology since then. And what the folks at the NSA tell me is that we do not have the speed and the agility in all cases to deal with this new kind of threat under the Foreign Intelligence Surveillance Act and that's why we believe and the president believes that these authorities are necessary in order to effectively defend this country against another attack by al Qaeda.
O'BRIEN: So two points then. You think that the Foreign Intelligence Service Act does not go far enough? It's not fast enough, a secret court? Is that what you're saying?
GONZALES: I'm told by the operational folks at the National Security Agency that we do not have the speed and the agility in all cases, in every circumstance, to deal with this new kind of threat. And as I've said before, the Foreign Intelligence Surveillance Act is a very important tool. We continue to utilize it when we can to deal with this new kind of threat and this new kind of war.
O'BRIEN: I'm sure you recognize that there are plenty of congressmen and women and senators who say, they had no intention when they authorized the use of force to go ahead and authorize any kind of wiretapping by the president without going through the courts or going through this other act, as you mentioned. What would you say to them?
GONZALES: Well, what I would say to them is that, the authority by the Congress was the authority to use all necessary and appropriate force. And a very important aspect of engaging in war against the enemy is to engage in signal intelligence. Signal intelligence means that we have to know what our enemy is doing.
We can't go into a war blindly. We've engaged in signal intelligence beginning with the Civil War and through all the conflicts since then. This is a very important aspect of engaging in the war. We do believe that that would constitute the authority by the Congress to engage in this kind of surveillance.
O'BRIEN: Less of a question, though, of whether or not signal intelligence is necessary and more of a question of whether the president has the authority to work around the courts and sort of, as some would see it, unilaterally make the decision without getting any kind of court approval.
Back in 1972, as I'm well aware you know, the Supreme Court ruled that President Nixon could not do the same thing, go ahead and wiretap by virtue of the fact that he's the president. How is this case different than that?
GONZALES: Well, one key difference is that the statute itself, the Foreign Intelligence Surveillance Act statute, requires that we can do so without a court order, engage in this kind of electronic surveillance, if otherwise approved by Congress and through another statute. And we believe that Congress has done so in this particular case.
We also, quite frankly, Soledad, I mean, we continue to believe that the president has the inherent authority, under the Constitution's commander in chief, to engage in this kind of conduct. But that's a secondary argument. We believe the Congress has authorized this kind of conduct.
And we understand the concern that have been raised by certain members of Congress. As the president indicated on Saturday, we have reached certain key members of Congress from the beginning of this program about what we're doing and the justifications for what we're doing.
And we didn't brief other members of Congress because of the importance of keeping this program classified as much as possible. We will, in the days to come, sit down with members of Congress and try to provide information to reassure them that the president of the United States is utilizing these tools in a lawful manner, in a way that ensures that the civil liberties of all Americans are protected.
O'BRIEN: So you'd be fine with a hearing, as some of the Democratic leadership is calling for, to investigate this more fully?
GONZALES: Well, we, obviously, want to provide information to the Congress about what we're doing to reassure them, what we're doing is lawful. But we want to also do so in a way that doesn't compromise this program. The president did acknowledge the existence of the program, but many operational aspects of the program remain highly classified.
This still remains a very valuable tool. It would be harmful to the United States if we lost this tool entirely. And so as we communicate with the Congress, we need to do so in a way that does not jeopardize or compromise this very valuable tool in the war against terrorism.
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