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Gonzales on the NSA Surveillance
Dec-20-05 02:42 pm

In the wake of the recent revelations that the President authorized the National Security Agency to conduct surveillance of American nationals in the United States, there has been little discussion of the specific legal arguments that would support the President's position. As noted in a previous post, In his weekly radio address last Saturday, President Bush contended that his actions were "consistent with U.S. law and the Constitution," but did not cite any specifics. Similarly, in his press conference on Monday, the President did not provide any more specific legal arguments. Instead, he deferred to the legal arguments being made by Attorney General Alberto Gonzales.

On the CBS Early Show, Gonzales said the following:

Well, the Foreign Intelligence Surveillance Act was passed in 1978. We continue to take advantage of the authorities under that act, but we've had dramatic changes in technology. And we are confronting a new kind of enemy and a new kind of war, and we need to have the speed and agility and utilize all the tools available to this president in confronting this enemy. The Foreign Intelligence Surveillance Act does require that we get a court order before we engage in electronic surveillance of a type that the president talked about on Saturday, except as provided by statute. And our position is that the authorization to use military force, which was passed by the Congress shortly after the attacks of September 11th, constitutes that authority by the Congress to engage in this kind of surveillance.

In other words, the Attorney General is claiming that the the Joint Resolution for the Authorization of the Use of Military Force  (AUMF) adopted by Congress in the wake of September 11th constituted a statutory exception to FISA. That Resolution provides:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

How can this resolution-- the purpose of which was to empower the President to use military force in response to September 11-- be seen as a statutory execption to FISA?  As others have written, the the Supreme Court drew a similar link to the AUMF in finding that the President could detainee individuals captured in the "war on terrorism," despite the existence of a prior statutory prohibtion. In Hamdi v. Rumsfeld (pdf), Justice O'Connor wrote:

Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi’s principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. §4001(a)[The Non-Detention Act]. Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. §811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Con-gress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II. H. R. Rep. No. 92–116 (1971); id., at 4 (“The concentration camp implications of the legisla-tion render it abhorrent”). The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”—the AUMF. Id., at 21–22. Again, because we conclude that the Government’s second assertion is cor-rect, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, with-out deciding, that §4001(a) applies to military detentions).

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organiza-tions, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

Thus, here seems to be the argument--

1) The Non-Detention Act prohibited the detention of Americans "except pursuant to an Act of Congress."

2) In Hamdi, the Supreme Court ruled that the AUMF constituted that "Act of Congress" for purposes of the exception to the Non-Detention Act.

3) Thus, the AUMF constitutes a similar exception to FISA.

This argument has serious flaws:

First, I am having great difficulty finding an explicit provision in FISA  that provides for a statutory exception similar to that found in the Non-Detention Act.

Second,  it seems reasonable that the detention of persons captured in Afghanistan, like Hamdi, would be "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use. " But does it make any sense that the surveillance of American nationals in the United States would fall into that category? Is it reasonable to think that Congress even remotely intended the AUMF to have such far-reaching scope? I cannot imagine so.

About the editor:

Anthony Clark Arend


Commentary and analysis at the intersection of international law and politics.

» Contact the editor

» Learn more about the M.A. in International Law and Government at Georgetown University.

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