I haven’t always been impressed with Attorney General Alberto Gonzales as an advocate, but he did a good job last night on Larry King Live. Here is the exchange between Gonzales and King:
General, Al Gore said today that President Bush repeatedly and persistently broke the law with the NSA domestic spying program and he wants a special counsel named to investigate. What are your thoughts?
GONZALES: Well, I didn’t see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology and we believe the president does have legal authorities to authorize this program.
I would say that with respect to comments by the former vice president it’s my understanding that during the Clinton administration there was activity regarding the physical searches without warrants, Aldrich Ames as an example.
I can also say that it’s my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant and so those would certainly seem to be inconsistent with what the former vice president was saying today.
KING: General, doesn’t the idea of spying run against the grain of Americans?
GONZALES: I think, Larry, people need to understand that this is a very targeted and limited program that the president has authorized. We have to put this in context. Of course, we’re talking about the most horrific attack on our soil in the history of this country, 3,000 lives lost on September 11th.
The president pledged to the American people that he would do whatever he could within the Constitution to protect this country. It has always been the case since we’ve had electronic communications that in a time of war this country engages in electronic surveillance in order to get information about the enemy.
We need to know who the enemy is. We need to know what the enemy is thinking. We need to know where the enemy is thinking about striking us again. And so absolutely, this president is going to utilize all the tools that are available to him to protect this country and I think the American people expect that of the president of the United States, who is the only public official charged, not only with the authority with the duty of protecting all Americans.
GONZALES: *** I’m anxious to talk to the American people about the importance of this program and the legal authorities that support this program.
KING: General, isn’t there a happy medium? Isn’t there a way to get quickly to a judge who signs off on a warrant to tap or listen in? Isn’t there a way to do that quick?
GONZALES: Larry, whenever you involve another branch of government in an activity regarding electronic surveillance, inherently it’s going to result in some cases in delay. Perhaps in straightforward cases we can get authority relatively quickly but not all of these cases are straightforward and it’s very, very important that the president has the agility and the speed to gather up electronic surveillance of individuals that may be in contact with the enemy.
And again, the FISA process, the Foreign Intelligence Surveillance Act, and the Foreign Intelligence Surveillance Court that supervises our authorities under that act has been a very valuable tool in fighting the war on terror but it is one tool and the president has directed that we make available to him all the possible tools provided under the law and that’s what we have done in this case.
KING: Can you say, general that actions have been prevented by these actions?
GONZALES: I believe that we can, Larry. I can’t say it publicly. I can’t give examples publicly. These are highly classified. This is a highly classified program but we have briefed certain members of Congress regarding the operations of these activities and have given examples of where these authorities, where the activities under this program have been extremely helpful in protecting America.
KING: Are you assuring that American citizens with nothing to hide have nothing to worry about?
GONZALES: Well, again, as the president indicated, and I’m only talking about what the president described to the American people in his radio address, we’re talking about communication where one end of the communication is outside the United States and where we have reason to believe that a party on that communication is a member of al Qaeda or is a member of an affiliate group with al Qaeda.
And so, as the president said if someone in the United States, if you’re an American citizen and you’re talking to al Qaeda, we want to know why. I think it’s very, very important that we know about communications that are occurring within the United States to folks outside the United States that may be affiliated with al Qaeda.
We know that on the attacks, with respect to the attacks on September 11th, we had the enemy here in our country and they obviously communicated with each other in order to initiate those attacks and that’s why it’s so very, very important that we have electronic surveillance of communications involving the enemy.
KING: Back to former Vice President Gore asking for a special counsel to investigate, would you object to that?
GONZALES: Well, I don’t know why — I don’t know why there would be a need for a special counsel at this time, Larry, because what I can tell you is that from the very beginning, from its inception this program has been carefully reviewed by the lawyers at the Department of Justice and other lawyers within the administration and we firmly believe that the president does have the legal authority to authorize electronic surveillance in order to gather up foreign intelligence particularly, Larry, when we’re talking about foreign intelligence of the enemy in a time of war.
Near the end of the conversation, Gonzales said, “I’m only talking about what the president described to the American people in his radio address….” I think there are probably other, broader surveillance programs, probably involving a sweeping up of large numbers of electronic communications, along the lines of the Clinton administration’s Echelon program. So the current debate over the very limited program now at issue may be only the beginning.
UPDATE: A.J. Strata has a very interesting post, arguing that the New York Times has backtracked critically in its depiction of the NSA intercept program. I’m confident that what A. J. says about the FBI bureaucrats who are the Times’ source for its latest story is right; I haven’t had time yet to try to figure out whether I agree with his legal analysis. A.J. thinks that all the NSA did was to supply leads to the FBI, legally, and that the FBI then followed up on the NSA’s information and, where warranted, got FISA warrants to target individual Americans. My main reservation, at this point, is that while that scenario may be what happened most of the time, it doesn’t seem to correspond to the way the administration has described and defended the program.