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The Attorney General Confronts Critics of Domestic Surveillance


In recent days, several high-ranking members of the Bush administration, including George W. Bush, have publicly defended a controversial domestic surveillance program ordered by the president as the proper course of action in the war against terror. But not everyone agrees.

The administration insists the surveillance program following the attacks of September 11, 2001 is legal. And the former head of the National Security Agency, General Michael Hayden, says it could have saved lives.

"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al-Qaida operatives in the United States," said the general.

The domestic surveillance program targets telephone calls of suspected terrorists overseas with alleged conspirators in the United States. Critics say that the government may be listening to conversations of law-abiding Americans without a court warrant. That is illegal under the Constitution.

But Attorney General Alberto Gonzales told students at the Georgetown University Law Center in Washington that the Use of Force Resolution passed by Congress after the September 11th attacks recognized the president's Constitutional authority to deter and prevent terrorist acts against the United States.

"It supplemented that authority by authorizing the president to, quote, 'use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks in order to prevent further attacks on the United States'."

However, members of both parties in Congress have voiced concerns with that interpretation, including the chairman of the Senate Judiciary Committee, Republican Party Senator Arlen Specter.

"I did not think in voting for the resolution to authorize the use of force that we were dealing with electronic surveillance,," said the senator.

In a panel discussion following the Attorney General's address, law professor David Cole said Congress specifically contemplated the issue of wiretaps during wartime when it passed the Foreign Intelligence Surveillance Act, or FISA.

"What they said was, 'When we've declared war, the president can conduct warrantless wiretapping, but only for 15 days,' said professor Cole. “And they said in the legislative history, 'This is so if the president needs further authority, he can come to us and ask for that authority.' The president did not do that here. He simply went ahead and did it without asking for their authority."

The FISA law says the administration may also begin wiretaps even when war has not been declared as long it obtains permission from a special court within 72 hours. Attorney General Gonzales, however, said the FISA process is cumbersome and loses precious time.

"Intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied. Then lawyers in the Department of Justice would have to be similarly satisfied. And finally, as Attorney General, I would have to be satisfied that the search meets the requirements of FISA."

The Justice Department's most recent report to Congress says there were more than 1700 wiretap applications to the FISA court in 2004. None were denied.

The Attorney General was met by protesters during his presentation who unfurled a banner quoting one of America's Founding Fathers, Benjamin Franklin, who said, "They who would give up an essential liberty for temporary security, deserve neither liberty or security." Mr. Gonzales said the administration is committed to preserving both.

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