Bush Had 'Constitutional' and 'Statutory' Authority, Some Say

July 7, 2008 - 8:22 PM

(CNSNews.com) - The administration's line on the "domestic spying" flap is this: both the Constitution and the law allowed President Bush to authorize the National Security Agency to intercept the international communications of Americans with ties to al Qaeda.

Both Secretary of State Condoleezza Rice and Attorney General Alberto Gonzales have used that defense in the past 24 hours.

In an appearance on Fox & Friends Monday morning, Attorney General Alberto Gonzalez said, "We believe that the president has the inherent authority as commander in chief under the Constitution to engage in signals intelligence of our enemy, against al Qaeda, but we also believe the president has statutory authority."

On Sunday, Secretary of State Condoleezza Rice told NBC's "Meet the Press" that the president has "authorities" under Foreign Intelligence Surveillance Act -- "which we are using, and using actively. He also has constitutional authorities that derive from his role as commander in chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority."

On Monday morning, Gonzales noted that the Foreign Intelligence Surveillance Act "does require a court order before we can engage in electronic surveillance...except as provided otherwise by statute. And we believe that Congress has 'provided otherwise by statute' in the authorization of the use of force, which Congress passed in the days following the attacks of Sept. 11."

(The "use of force" resolution, passed Sept. 14, 2001, authorizes 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 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.")

Gonzalez said President Bush is someone who supports civil liberties -- and is "not going to engage in any conduct that is not otherwise lawful."

He noted that Congress passed the Foreign Intelligence Surveillance Act in 1978, but since then, there have been major changes in technology, and that means the law does not provide the "speed and agility" the administration needs to deal with a "new kind of enemy and new kind of war."

He said the president is "using the authorities that we believe were granted to him by the Congress in the authorization of the use of force as well as the authorities that he has as commander in chief under the Constitution."

Gonzales refused to say how many times President Bush has authorized domestic surveillance, calling it a "highly classified matter."

But he said he "can reassure the American people" that the Bush administration is not engaged in the surveillance of phone calls made solely within the United States.

He said one party involved in the call has to be outside the United States. "And we have to have a reasonable basis to conclude that one of the parties to the call is a member of al Qaeda, affiliated with al Qaeda, or is affiliated with an organization that is supported through al Qaeda."

Gonzalez said the administration has held "numerous briefings" with key members of Congress from the very beginning of the program.

He said he understands the concerns raised by certain members of Congress, and he said the administration will now "engage in a very constructive dialogue to inform the Congress about the very careful limits that the president has placed upon the program" to protect the civil liberties of Americans.

Both Democrats and some Republicans are calling for congressional hearings into the top secret domestic surveillance program, but Gonzales indicated that the administration is concerned about divulging more details to the enemy.

Subscribe to the free CNSNews.com daily E-Brief.

Send a Letter to the Editor about this article.