Since the Democrats will, predictably, resurrect the canard of "domestic spying" to attack CIA director nominee Gen. Michael V. Hayden during upcoming hearings, it might be useful to take another look at the legal bases for the NSA's terrorist surveillance program. As Attorney General Alberto Gonzales explained in a Feb. 6, 2006 speech, the president's authority to conduct such surveillance is firmly grounded no only in the Constitution, but in Congress. Here is an excerpt from the Gonzales speech:
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.
John B. Dwyer 5 08 06