"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
This helps make Gonzalez's point. Clearly Congress recognized the need for warrantless surveillance but surely they didn't think it necessary for only 15 days! Which is why FISA also says is that it shall be the exclusive means of conducting foreign surveillance EXCEPT AS AUTHORIZED BY STATUTE. AUMF is precisely that statute!
"Attorney General Gonzales made sure to assert that we are not in a state of war, that the AUMF being an authorization us use military force is something different from that."
I disagree. In Gonzalez prepared statement from yesterday he asserted we are at war many times. See http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html.
That's what Congress wrote into FISA, 15 days, free pass on warrantless electronic surveillance. There are other conditions under which electronic surveillance can be undertaken without a warrant, that do not require an "external enabling statute." 50 USC 1802 describes the conditions for that.
Which is why FISA also says is that it shall be the exclusive means of conducting foreign surveillance EXCEPT AS AUTHORIZED BY STATUTE.
Yep. Gonzales is arguing that the AUMF constitutes specific authorization for some sort of electronic surveillance without a warrant. In other words, that Congress itself has authorized the NSA program by the AUMF. "We're just doing what Congress said we could." A good number of the members of Congress are miffed at that assertion. They take it as an unreasonable extension of the language in the AUMF. Sure, the point can be argued. Any point can be argued. But Gonzales and the President would be smart to hear the "we're miffed" message, and act accordingly.
In Gonzalez prepared statement from yesterday he asserted we are at war many times.
Yes, in a colloquial sense. But if we are technically at war, then 50 USC 1811 would kick in, and we are way past the 15 days specified therein.
GONZALES: It's hard to say, Senator, because whether it's 24 or 72, whatever, I have got to make a determination under the law that at the time I grant emergency authorization, that all the requirements of FISA are met. I think General Hayden said it best yesterday: This is not a 72-hour sort of hall pass.I've got to know when I grant that authorization, whether I then have 24 or 72 hours to submit a written application to the court, I've got to know at the time I say, "Yes, go forward," that all the requirements of FISA are met. That's the problem.
If I could just also make one final point.
BROWNBACK: Fair enough.
GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
That's what Congress wrote into FISA, 15 days, free pass on warrantless electronic surveillance. And what about after that?
"The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.... The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter."Since Gonzales is using the "plain language" argument quite liberally, what does the plain language, "allow time for consideration of any amendment to this act" mean? Does it mean that the conferees expected FISA ("this act") to be amended in the event of a wartime emergency?H.R. Conf. Rep. No. 95-1720, at 34 (1978).
Here is what Gonzales says about the so=called "plain language" above.
Congress expected that it would revisit the issue in light of events and likely would enact a special authorization during that 15-day period. H.R. Conf. Rep. No. 95-1720, at 34. That is exactly what happened three days after the attacks of September 11th, when Congress passed the AUMF, authorizing the President to employ all necessary and appropriate incidents of military force including the use of communications intelligence activities targeted at the enemy.He morphed "amendment to this act" into "enact a special authorization." So, does Gonzales mean for "amendment to this act" and "enact a special authorization" to be equivalent? He expressed unequivocally, more than once, that he is not arguing that the AUMF (special authorization) constitutes amendment to FISA.
GONZALES: And I know today there's going to be some discussion about whether or not we should amend FISA.The only point I am making is that the "AUMF constitutes statutory authorization" argument is a lame argument.I don't know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime.
And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable.
And so that's one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I'm concerned will jeopardize this program. ...
GONZALES: Well, Senator, I agree with you: We are a nation of laws. And we do believe we are following the law. And we do believe that the Constitution allows the president of the United States to engage in this kind of surveillance.
We also believe the authorization to use military force represents a supplemental grant of authority by the Congress to engage in this kind of surveillance totally consistent with FISA.
If you study carefully the white paper that we've submitted, we're not arguing that somehow FISA was amended or that we're somehow overriding FISA. That's not what we're talking about here. ...
GONZALES: Senator, it is not in contravention of the FISA law. We believe the authorization to use military force is the kind of congressional action that the FISA law anticipated.
It has never been our position that somehow the AUMF amended FISA. It's never been our position that somehow FISA has been overridden. Quite the contrary: We believe that the president's authorizations are fully consistent with the provisions of FISA.