Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States
February 6, 2006
We cannot forget the threat that the al Qaeda terrorist network poses to our Nation. Long before September 11th, al Qaeda promised to attack the United States. In 1998, Osama bin Laden declared a jihad against our country, and incited “every Muslim who can do it” “[t]o kill the Americans and their allies—civilians and military” “in any country in which it is possible to do it.” Statement of Osama bin Laden, Ayman al-Zawahiri, et al., Fatwah Urging Jihad Against Americans, published in Al-Quds al-’Arabi (Feb. 23, 1998). Al Qaeda members and agents have carried out bin Laden’s orders with a vengeance; al Qaeda attacked the U.S.S. Cole in Yemen, the United States Embassies in Kenya and Tanzania, and then, of course, the United States itself on September 11, 2001.
On September 11th, the al Qaeda terrorist network executed the most deadly foreign attacks on this Nation’s soil in history. Al Qaeda planners and operatives carefully selected and hijacked four commercial jetliners, each fully loaded with fuel for a transcontinental flight. Within hours, the Twin Towers of the World Trade Center lay in ruin. The terrorists also managed to strike the headquarters of the Nation’s Armed Forces, the Pentagon. And it is believed that the target of the fourth plane, United Flight 93, was either the White House or the Capitol Building, suggesting that al Qaeda had sought to decapitate the federal Government. The attacks of September 11th resulted in approximately 3,000 deaths—the highest single-day death toll from a foreign attack on the United States in the Nation’s history. These attacks shut down air travel in the United States, disrupted the Nation’s financial markets and government operations, and caused billions of dollars in damage.
Our Nation responded by taking up arms against al Qaeda, affiliated terrorist networks, and the governments that sheltered them. A coalition of our allies has supported the United States in this war. Indeed, shortly after the attacks, NATO—for the first time in its 46-year history—invoked article 5 of the North Atlantic Treaty, which provides that an “armed attack against one or more of [the parties] shall be considered an attack against them all.” North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.
It has become more clear in the days, weeks, and years since September 11th that our enemy in this war is no ordinary terrorist organization. Al Qaeda demonstrated on September 11th that it could execute a highly sophisticated operation, one that required al Qaeda operatives to live in our midst for years, to transfer money into the country, to arrange training, and to communicate with planners overseas. And it has promised similar attacks in the future.
Al Qaeda is not content with the damage it inflicted on September 11th. Since that day, al Qaeda leaders have repeatedly promised to deliver another, even more devastating attack on America. See, e.g., Osama bin Laden, videotape released on Al-Jazeera television network (Oct. 24, 2004) (warning United States citizens of further attacks and asserting that “your security is in your own hands”); Osama bin Laden, videotape released on Al-Jazeera television network (Oct. 18, 2003) (“God willing, we will continue to fight you and will continue martyrdom operations inside and outside the United States . . . .”); Ayman Al-Zawahiri, videotape released on the Al-Jazeera television network (Oct. 9, 2002) (“I promise you [addressing the ‘citizens of the United States’] that the Islamic youth are preparing for you what will fill your hearts with horror.”).
As recently as December 7, 2005, Ayman al-Zawahiri professed that al Qaeda “is spreading, growing, and becoming stronger,” and that al Qaeda is “waging a great historic battle in Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.” Ayman al-Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005). And less than three weeks ago, we heard Osama bin Laden warn that the United States could not prevent attacks on the homeland. He continued:
The proof of that is the explosions you have seen in the capitals of European nations. . . . The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through (with preparations), with God’s permission. Quoted at http://www.breitbart.com/news/2006/01/19/D8F7SMRH5.html (Jan. 19, 2006).
Al Qaeda poses as much of a threat as a traditional nation state, and in many ways, a greater threat.Indeed, in the time since September 11th, al Qaeda and its allies have staged several large-scale attacks around the world, including in Indonesia, Madrid, and London, killing hundreds of innocent people. Al Qaeda’s leaders have repeatedly made good on their threats, and al Qaeda has demonstrated its ability to insert foreign agents into the United States to execute attacks.
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.
Accordingly, the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, under the three-part framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), the President’s authority falls within Category I, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,” and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can” confer on him.
In 2004, the Supreme Court considered the scope of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). There, the question was whether the President had the authority to detain an American citizen as an enemy combatant for the duration of the hostilities. The Supreme Court confirmed that the expansive language of the AUMF —“all necessary and appropriate force”—ensures that the congressional authorization extends to traditional incidents of waging war. See also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2092 (2005). And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and accepted incident of military force.
This fact is amply borne out by history. This Nation has a long tradition of wartime enemy surveillance—a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32 (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”). And for as long as electronic communications have existed, the United States has intercepted those communications during wartime, and done so, not surprisingly, without judicial warrants. In the Civil War, for example, telegraph wiretapping was common and provided important intelligence for both sides. In World War I, President Wilson authorized the military to intercept all telegraph, telephone, and cable communications into and out of the United States; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. See Exec. Order No. 2604 (Apr. 28, 1917). So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves the interception only of international communications that are linked to al Qaeda.
Some have suggested that the AUMF did not authorize intelligence collection inside the United States. That contention cannot be squared with the reality of the September 11th attacks on our soil, launched from within the country, and carried out by sleeper agents who had lived amongst us. Given this background, Congress certainly intended to support the President’s use of force to repel an unfolding attack within the United States. Congress also must be understood to have authorized the traditional means by which the military detects and responds to such attacks. Nor can this contention be squared with the language of the AUMF itself, which calls on the President to protect Americans both “at home and abroad,” to take action to prevent further terrorist attacks “against the United States,” and directs him to determine who was responsible for the attacks. Such a contention is also contrary to the long history of wartime surveillance, which has often involved the interception of enemy communications into and out of the United States.
Against this backdrop, the NSA’s focused terrorist surveillance program falls squarely within the broad authorization of the AUMF even though, as some have argued, the AUMF does not expressly mention surveillance. The AUMF also does not mention detention of enemy combatants. But we know from the Supreme Court’s decision in Hamdi that such detention is authorized even for U.S. citizens. Justice O’Connor reasoned: “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.” 542 U.S. at 519 (plurality opinion).
As Justice O’Connor recognized, “it is of no moment that the AUMF does not use specific language of detention” or even refer to the detention of U.S. citizens as enemy combatants at all. Id. Nor does it matter that individual Members of Congress may not have specifically intended to authorize such detention. The same is true of electronic surveillance. It is a traditional incident of war, and, thus, as Justice O’Connor said, it is “of no moment” that the AUMF does not explicitly mention this activity. Congress has “clearly and unmistakably authorized” it.
These omissions are not at all surprising. In enacting the AUMF, Congress made no attempt to catalog every aspect of the use of force it was authorizing. Instead, following the model of past military force authorizations, Congress—in general, but broad, terms—confirmed the President’s authority to use traditional and accepted incidents of military force to identify and defeat the enemy. In doing so, Congress must be understood to have endorsed the use of so fundamental an aspect of the use of military force as electronic surveillance.
Some contend that even if the President has constitutional authority to engage in the surveillance of our enemy during an armed conflict, that authority has been constrained by Congress with the passage in 1978 of the Foreign Intelligence Surveillance Act (“FISA”). Generally, FISA requires the Government to obtain an order from a special FISA court before conducting “electronic surveillance.” 50 U.S.C. §§ 1803-1805 (2000 and Supp. II 2002). FISA defines “electronic surveillance” carefully and precisely. Id. § 1801(f). And, as confirmed by another provision, 18 U.S.C. § 2511(2)(f) (Supp. II 2002) (carving out from statutory regulation the acquisition of intelligence information from “international or foreign communications” and “foreign intelligence activities . . . involving a foreign electronic communications system” as long as they are accomplished “utilizing a means other than electronic surveillance as defined” by FISA), and by FISA’s legislative history, Congress did not intend FISA to regulate certain communications intelligence activities of the NSA, including certain communications involving persons in the United States. See, e.g., S. Rep. No. 95-604, at 64 (1978). Because I cannot discuss operational details, for purposes of this discussion, I will assume that intercepts of international al Qaeda communications under the terrorist surveillance program fall within the definition of “electronic surveillance” in FISA.
Even with FISA’s careful carve out for certain NSA signals intelligence activities as they existed in 1978, the legislative history makes clear that there were concerns among Members of Congress about the constitutionality of FISA itself if construed to be an exclusive means for electronic surveillance. See, e.g., H.R. Conf. Rep. No. 95-1720, at 35 (“The conferees agree that the establishment by this act of exclusive means by which the President may conduct electronic surveillance does not foreclose a different decision by the Supreme Court.”). The FISA Court of Review, the special court of appeals charged with hearing appeals of decisions by the FISA court, stated in 2002 that “[w]e take for granted that the President does have that [inherent] authority” and, “assuming that is so, FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d at 742. It is a serious question whether, consistent with the Constitution, FISA may encroach upon the President’s Article II powers during the current armed conflict with al Qaeda by prohibiting the terrorist surveillance program. Fortunately, for the reasons that follow, we need not address that difficult question.
FISA allows Congress to respond to new threats through separate legislation. FISA prohibits persons from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.” 50 U.S.C. § 1809(a)(1) (2000) (emphasis added). For the reasons I have already discussed, the AUMF provides the relevant statutory authorization for the terrorist surveillance program. Hamdi makes clear that the broad language in the AUMF can satisfy a requirement for specific statutory authorization set forth in another law.
Hamdi involved a statutory prohibition on all detention of U.S. citizens except as authorized “pursuant to an Act of Congress.” 18 U.S.C. § 4001(a) (2000). Even though the detention of a U.S. citizen involves a deprivation of liberty, and even though the AUMF says nothing on its face about detention of U.S. citizens, a majority of the members of the Supreme Court nevertheless concluded that the AUMF satisfied the statutory requirement. See Hamdi, 542 U.S. at 519 (plurality opinion); id. at 587 (Thomas, J., dissenting). The same is true for the prohibition on warrantless electronic surveillance in FISA.
FISA also expressly allows the President to conduct warrantless surveillance for 15 days following a congressional declaration of war. 50 U.S.C. § 1811 (2000). That provision shows that Congress understood that warrantless surveillance would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in a time of war would end after only 15 days. Instead, the legislative history of this provision makes clear that Congress elected not to decide how surveillance might need to be conducted in the event of a particular armed conflict. 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. Some have argued that Title III (the domestic law-enforcement wiretap provisions) and FISA are the “exclusive means” for conducting electronic surveillance as defined by FISA. It is true that section 2511(2)(f) of title 18, U.S. Code, provides that the “procedures in [Title III] . . . and [FISA] shall be the exclusive means by which electronic surveillance . . . may be conducted.” But, as I have said before, FISA itself prohibits the Government from engaging in electronic surveillance “except as authorized by statute.” 50 U.S.C. § 1809(a)(1). It is noteworthy that FISA does not say that “the Government cannot engage in electronic surveillance ‘except as authorized by FISA and Title III.’” Instead, FISA allows electronic surveillance that is authorized by statute—any statute. And, in this case, that other statute is the AUMF.
Even if some might think this is not the only possible reading of FISA and the AUMF, in accordance with long recognized canons of construction, FISA must be interpreted in harmony with the AUMF to allow the President, as Commander in Chief during a congressionally authorized armed conflict, to take the actions necessary to protect the country from another catastrophic attack. So long as such an interpretation is “fairly possible,” the Supreme Court has made clear that it must be adopted in order to avoid the serious constitutional issues that would otherwise be raised. See, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300 (2001). Application of the canon of constitutional avoidance is particularly appropriate here. As noted, Congress recognized in 1978 that FISA might approach or exceed its constitutional authority. Since FISA’s enactment, the means of transmitting communications has undergone extensive transformation. This technological change substantially altered the effects of FISA’s careful definition of “electronic surveillance” and has resulted in increased and unintended interference with some of the activities Congress decided to exclude from regulation in 1978.
Many people ask why the President elected not to use FISA’s procedures for securing court orders for the terrorist surveillance program. We have to remember that what is at issue is a wartime intelligence program designed to protect our Nation from another attack in the middle of an armed conflict. It is an “early warning system” with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that we can detect reliably, immediately, and without delay whenever communications associated with al Qaeda enter or leave the United States. That may be the only way to alert us to the presence of an al Qaeda agent in our country and to the existence of an unfolding plot.
The optimal way to achieve the speed and agility necessary to this military intelligence program during the present armed conflict with al Qaeda is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information. These officers are best situated to make decisions quickly and accurately. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system. Importantly, as explained below, these intelligence officers apply a probable cause standard. The critical advantage offered by the terrorist surveillance program compared to FISA is who makes the probable cause determination and how many layers of review must occur before surveillance begins. Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There is a serious misconception about these emergency authorizations. We do not and cannot approve emergency surveillance under FISA without knowing that we meet FISA’s normal requirements. In order to authorize emergency surveillance under FISA, the Attorney General must personally “determine that . . . the factual basis for issuance of an order under [FISA] to approve such surveillance exists.” 50 U.S.C. § 1805(f). FISA requires the Attorney General to determine in advance that this condition is satisfied. That review process can, of necessity, take precious time. And that same process takes the decision away from the officers best situated to make it during an armed conflict. Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers. Those intelligence officers would have to get the sign-off of lawyers at the NSA, and then lawyers in the Department of Justice would have to be satisfied that the statutory requirements for emergency authorization are met, and finally as Attorney General, I would have to be satisfied that the proposed surveillance meets the requirements of FISA. Finally, the emergency application must be filed “as soon as practicable,” but within 72 hours.
A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of an application and related legal papers; the approval of a designated Cabinet-level officer; a certification from a designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge who sits on the FISA Court. See 50 U.S.C. § 1804. Needless to say, even under the very best of circumstances, this process consumes valuable resources and results in significant delay. We all agree that there should be appropriate checks and balances on the Branches of our Government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail. Finally, the NSA’s terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. The Fourth Amendment has never been understood to require warrants in all circumstances. The Supreme Court has upheld warrentless searches at the border and has allowed warrantless sobriety checkpoints. See, e.g., Michigan v. Dept. of State Police v. Sitz, 496 U.S. 444 (1990); see also Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (stating that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack”). Those searches do not violate the Fourth Amendment because they involve “special needs” beyond routine law enforcement. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995). To fall within the “special needs” exception to the warrant requirement, the purpose of the search must be distinguishable from ordinary general crime control. See, e.g., Ferguson v. Charleston, 532 U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
The terrorist surveillance program fits within this “special needs” category. This conclusion is by no means novel. During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment. See Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence, 103d Cong. 2d Sess. 61, 64 (1994) (statement of Deputy Attorney General Jamie S. Gorelick). See also In re Sealed Case, 310 F.3d at 745-46.
The key question under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. Determining the reasonableness of a search for Fourth Amendment purposes requires balancing privacy interests with the Government’s interests and ensuring that we maintain appropriate safeguards. United States v. Knights, 534 U.S. 112, 118-19 (2001). Although the terrorist surveillance program may implicate substantial privacy interests, the Government’s interest in protecting our Nation is compelling. Because the need for the program is reevaluated every 45 days and because of the safeguards and oversight, the al Qaeda intercepts are reasonable.
No one takes lightly the concerns that have been raised about the interception of domestic communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly focused and fully consistent with the traditional forms of enemy surveillance found to be necessary in all previous armed conflicts. The need for the program is reviewed at the highest levels of government approximately every 45 days to ensure that the al Qaeda threat to the national security of this Nation continues to exist. Moreover, although the Fourth Amendment does not require application of a probable cause standard in this context, the “reasonable grounds to believe” standard employed in this program is the traditional Fourth Amendment probable cause standard. As the Supreme Court has stated, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks omitted) (emphasis added).
This Administration has chosen to act now to prevent the next attack with every lawful tool at its disposal, rather than wait until it is too late. It is hard to imagine a President who would not elect to use these tools in defense of the American people—in fact, it would be irresponsible to do otherwise. The terrorist surveillance program is both necessary and lawful. Accordingly, as the President has explained, he intends to continue to exercise this authority as long as al Qaeda poses such a grave threat to the national security. If we conduct this reasonable surveillance—while taking special care to preserve civil liberties as we have—we can all continue to enjoy our rights and freedoms for generations to come. I am attaching for the record both the Department of Justice’s paper of January 19, 2006, setting forth the Department’s analysis of the legal basis for the terrorist surveillance program, and the previous Letter for Hon. Pat Roberts, Chairman, Senate Select Committee on Intelligence, from William E. Moschella, Assistant Attorney General, Office of Legislative Affairs (Dec. 22, 2005). I am also attaching my detailed responses to questions previously posed by Chairman Specter.
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