United States Attorney General Alberto Gonzales gave this prepared testimony before the Senate Committee on the Judiciary's hearing on "Wartime Executive Power and the NSA's Surveillance Authority" on February 6, 2006.
In confronting this new and deadly enemy, President Bush promised that "[w]e will direct every resource at our command—every means of diplomacy, every tool of intelligence, every tool of law enforcement, every financial influence, and every weapon of war—to the disruption of and to the defeat of the global terror network." President Bush Address to a Joint Session of Congress (Sept. 20, 2001). The terrorist surveillance program described by the President is one such tool and one indispensable aspect of this defense of our Nation.
The terrorist surveillance program targets communications where one party to the communication is outside the U.S. and the government has "reasonable grounds to believe" that at least one party to the communication is a member or agent of al Qaeda, or an affiliated terrorist organization. This program is reviewed and reauthorized by the President approximately every 45 days. The Congressional leadership, including the leaders of the Intelligence Committees of both Houses of Congress, has been briefed about this program more than a dozen times since 2001. The program provides the United States with the early warning system we so desperately needed on September 10th.
The terrorist surveillance program remains highly classified, as it should be. We must protect this tool, which has proven so important to protecting America. An open discussion of the operational details of this program would put the lives of Americans at risk. The need to protect national security also means that I must confine my discussion of the legal analysis to those activities confirmed publicly by the President; I cannot and will not address operational aspects of the program or other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confused, or wrong.
Congress and the American people are interested in two fundamental questions: is this program necessary and is it lawful. The answer to both questions is yes.
The question of necessity rightly falls to our Nation's military leaders, because the terrorist surveillance program is an essential element of our military campaign against al Qaeda. I therefore address it only briefly. The attacks of September 11th placed the Nation in a state of armed conflict. In this armed conflict, our military employs a wide variety of tools and weapons to defeat the enemy. General Michael Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, recently explained why a terrorist surveillance program that allows us quickly to collect important information about our enemy is so vital and necessary to the War on Terror.
The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who the enemy is and what he is doing. We have to collect the right dots before we can "connect the dots." The terrorist surveillance program allows us to collect more information regarding al Qaeda's plans, and, critically, it allows us to locate al Qaeda operatives, especially those already in the United States and poised to attack. We cannot defend the Nation without such information, as we painfully learned on September 11th.
As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. The Attorney General of the United States is the chief legal adviser for the President and the Executive Branch. Accordingly, the Department of Justice has thoroughly examined this program and concluded that the President is acting within his power in authorizing it. The Department of Justice is not alone in concluding that the program is lawful. Career lawyers at NSA and its Inspector General office have been intimately involved in the oversight of the program. The lawyers have found the program to be lawful and reviewed its conduct. The Inspector Genera's office has exercised vigorous reviews of the program to provide assurance that it is carried out within the terms of the President's authorization.
The terrorist surveillance program is firmly grounded in the President's constitutional authorities. The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). It has long been recognized that the President's constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have repeatedly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
If this authority is available in ordinary times, it is even more vital in the present circumstances of our armed conflict with al Qaeda. The President authorized the terrorist surveillance program in response to the deadliest foreign attack on American soil, and it is designed solely to prevent the next al Qaeda attack. After all, the goal of our enemy is to blend in with our civilian population in order to plan and carry out future attacks within America. We cannot forget that the September 11th hijackers were in our country, living in our communities.
The President's authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his constitutional powers. It comes directly from Congress as well. Just a few days after the attacks of September 11th, Congress enacted a joint resolution to support and authorize the military response to the attacks on American soil. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) ("AUMF"). In the AUMF, Congress did two important things. First, it expressly recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Second, it supplemented that authority by authorizing the President to "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.