The Bush administration has launched a full-force media campaign to convince the public that they should spy on American citizens. Attorney General Gonzales spoke at Georgetown University defending the Bush actions. Here, from Democracy Now, is an analysis of the laws governing the warentless wiretapping of American citizens.
AMY GOODMAN: Gonzales left immediately after his talk without taking questions. Protesters followed. Also, panelists responded to what the Attorney General had to say. One of the panelists was David Cole, law professor at Georgetown and author of several books including Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security.
DAVID COLE: FISA, the Foreign Intelligence Surveillance Act, was enacted by Congress in 1978 after revelations of rampant wiretapping and surveillance on Americans in the name of national security. And there was the Church Committee held extensive hearings and wrote an extensive report, criticizing this practice and calling for reforms. FISA was one such reform.
It regulates electronic surveillance for foreign intelligence and national security purposes. It permits such surveillance, but with minor exceptions not invoked by the Department of Justice, it requires a warrant from a FISA court. To get such a warrant, you don't have to show probable cause of a crime, you just have to show probable cause that the person you're targeting is a member of a terrorist organization. So if, in fact, that's all they were targeting, they could have gone through the FISA courts. They didn't.
Congress, in FISA, specifically said that FISA and the Title III, which governs ordinary criminal wiretaps, are the exclusive means for any wiretapping by officials within the United States. They are the exclusive means. That means the only means. Congress also said it's a crime to conduct electronic surveillance without statutory authorization in two places: in 50 USC Section 1809 and in 18 USC Section 2511. Both of those statutes, I think, the President violated.
And finally, and most importantly, Congress specifically contemplated the exact question addressed today; that is, authorization for wiretapping during wartime. Section 1811 in FISA is entitled “Authorization During Time of War.” So this is not some un-contemplated issue; Congress specifically addressed it. And what they said was when we’ve declared war, the President can conduct warrant-less wiretapping, but only for 15 days. And they said in the legislative history, this is so if the President needs further authority, he can come to us and ask for that authority. The President didn't do that here. He simply went ahead and did it without asking for their authority.
Now, the D.O.J.'s argument, and repeated here by the Attorney General, is that the AUMF, the authorization to use military force, somehow implicitly overrides all of this and authorizes the President to conduct warrant-less wiretapping. There's several problems with that argument. First, the authorization says nothing about warrant-less wiretapping. Second, as I’ve indicated, Section 1811 of the Foreign Intelligence Surveillance Act specifically addresses discretion of warrant-less wiretapping and says 15 days and no further. And that provision applies when Congress has declared war, the most serious and grave act Congress can do. Here Congress only authorized the use of military force. So if Congress said a declaration of war only gives you 15 days, how can it be that an authorization to use military force somehow gives him four years and more of unchecked power?
In addition, when Attorney General Gonzales was asked by reporters why he didn't go to Congress and ask for additional authority, he said, ‘Well, we talked to some members of Congress, and they said it would be difficult, if not impossible, to get that additional authority.’ So how can you argue on the one hand, Congress gave us the authority, but on the other hand, we didn't go to Congress to ask for the authority because if we did, it would be difficult, if not impossible, to get it?
Now, when you're a law student, they tell you if you can't argue the law, argue the facts. They also say if you can't argue the facts, argue the law. If you can't argue either, apparently, the solution is to go on a public relations offensive and make it a political issue, because that's what the Bush administration has done here, sort of taking the pulpit, through the President, through the Attorney General, through Michael Hayden, through the Vice President, to say over and over and over again, it's lawful, as if the American people will somehow come to believe this if we say it often enough.
And I think in light of that, the sort of clearly blatantly political nature of this, I'm proud of the very civil civil disobedience that was shown here today to express the opposite political view. Now, David Brooks, in commenting on the Alito hearings which discussed these issues, said, ‘Anytime the Democrats are seen talking about law, and the Republicans are seen to be talking about national security, that's a winner for the Republicans.’ And that may be true as a political matter. In fact, Karl Rove said exactly the same thing just last week, that there's a political gain here that they see by invoking fear and national security over law.
But that's precisely why we have law in the first place. It's in recognition that political pressures will push government officials toward violation of rights and towards accretion of government power. This administration has taken the view -- in this case; in the torture case; in the cruel, inhuman and degrading treatment issue -- that it can literally override the law and violate criminal statutes. Now, it's on a political campaign to entrench that power. What's at stake here is whether we are a government of laws, rather than a government of men.
AMY GOODMAN: David Cole, law professor at Georgetown, one of the panelists responding to the speech made by Attorney General Alberto Gonzales at Georgetown University Law Center yesterday. President Bush heads to the National Security Agency today in the weeklong Bush administration campaign that could be called, "Why We Spy."
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