Gonzales On The NSA Eavesdropping Activities

As he prepares to begin testifying before Congress today, Attorney General Alberto Gonzales published a short opinion piece in today's Wall Street Journal previewing his defense of the Administration's domestic eavesdropping activities. Below are three excerpts from that defense:

Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president.

Exactly right.

History is clear that signals intelligence is, to use the language of the Supreme Court, "a fundamental incident of waging war." President Wilson authorized the military to intercept all telegraph, telephone and cable communications into and out of the U.S. during World War I. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the U.S.

I have no reason to doubt that this is true. However, the fact that things like this have been done before does not necessarily prove that they are lawful. After all, Roosevelt interned Japanese citizens and few today would argue that this was consistent with the Constitution.

The AUMF is not a blank check for the president to cash at the expense of the rights of citizens. The NSA's terrorist surveillance program is narrowly focused on the international communications of persons believed to be members or agents of al Qaeda or affiliated terrorist organizations. The terrorist surveillance program protects both the security of the nation and the rights and liberties we cherish.

If only that were so.

A few points to consider:

1. The acts attributed to Wilson and Roosevelt preceded passage of FISA. Thus, even if we were to concede that those were valid exercises of Presidential power, those precedents would have little to say about the present issue unless one is prepared to argue that the eavesdropping power is inherent in the Presidency and is beyond the power of Congress to regulate. But if that is the argument, then the AUMF itself is irrelevant and the Administration's reliance on it is a red herring.
2. If the types of activities attributed to Wilson and Roosevelt are "a fundamental incident of waging war," and if the AUMF authorizes this Administration to use all such "incidents," then how is the AUMF anything but a "blank check"? Under this theory, Bush, like Wilson and Roosevelt, could intercept and monitor all communications traffic in and out of the United States.
3. How do we know the NSA program is "narrowly focused?" At best we have to take the Administration's word for that, an Administration who's record is, shall we say, a bit spotty on the candor criterion. Moreover, the available evidence tends to belie that claim. As noted by Bob Herbert of the New York Times, "The National Security Agency sent so much useless information to the F.B.I. in the aftermath of the Sept. 11 attacks that agents began to joke that the tips would result in more 'calls to Pizza Hut.' [T]housands of tips a month came pouring in, virtually all of them leading to dead ends or innocent Americans." Actually, though, the truth or falsity of this claim is really beside the point. The Administration does not claim that the eavedropping is lawful becuase it is "limited." To the contrary, it claims is that the Constitution imposes no limits (see Wilson and Roosevelt examples above) and that even if there are limits, the AUMF removes them.
   

The scariest thing about the Administration's legal arguments is that they negate the existance of any limits at all on the power of the President to spy on American citizens. The scariest thing about the Administration is its willingness to agressively advance such arguments.