MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
MELISSA BLOCK, host:
And I'm Melissa Block. The Bush administration is making a more robust defense of its program of warrantless eavesdropping on some Americans. Yesterday, the former head of the National Security Agency made his case that the program is a critical tool in the war against terrorism. And today Attorney General Alberto Gonzales spoke at Georgetown University Law School.
NORRIS: He defended the legality of listening in on international calls without the approval of the Foreign Intelligence Surveillance, or FISA, court. Fifteen students stood and turned their backs as he spoke. The attorney general then headed back to the Justice Department, where we sat down for an interview.
NORRIS: Attorney General Alberto Gonzales, thank you so much for speaking with us this morning.
Mr. ALBERTO GONZALES (United States Attorney General): Happy to be here.
NORRIS: I'd like to begin by asking you about the question of whether Congress actually approved domestic surveillance. You said that you asked Congress for this authority, but Senator Tom Daschle, the former Senate Majority Leader, said that you actually asked for approval and were denied. Is that true?
Mr. GONZALES: Well, what occurred about a year and a half ago is that there was a discussion with key members of the Congress and, about legislation. Now, we've taken the position that such legislation wasn't necessary, and that may cause one to wonder why, well, if you didn't need it, why are you asking for it, or why is it being discussed? And our own view is that in a time of war it's always best for the nation to have the executive branch and the legislative branch speaking with one voice.
Mr. GONZALES: And so there was some discussion about this issue. And, ultimately, we were advised by the congressional leadership that, that pursuing a course of action, pursuing legislation, would result in the disclosure of the, of the program, and, in essence, compromise the program, and that perhaps that wouldn't be the right thing to do.
NORRIS: And as to the question of why the administration decided to sidestep the FISA system...
Mr. GONZALES: Well, we, we, I, let me, let me disagree with that characterization.
Mr. GONZALES: I think the actions we're taking are fully consistent with FISA if you, if you consider the authorization to use military force, which we believe was an expression by Congress to engage in all activities fundamentally incident to waging war. And it's long been the case, as long as we've had electronic surveillance,t hat the United States has engaged in electronic surveillance of the enemy during a time of war. It is a fundamental incident of waging war. And therefore we believe that the authorization of the use of force was an authorization by Congress to engage in electronic surveillance, and therefore is fully consistent with the provisions of FISA.
NORRIS: Now, you said the administration believes this. If we were to go to Capitol Hill and query every member of Congress, every senator, do you think that a majority would agree with you that the authorization to use force included an authorization to conduct warrantless searches on Americans on American soil?
Mr. GONZALES: I think this is a good question. And this was the issue that was discussed and evaluated by the Supreme Court in the Hamdi Decision, where Mr. Hamdi took the position that the President of the United States did not have the authority to detain an American citizen. And, and the Supreme Court evaluated the authorization to use force and determined that even though the authorization did not specifically mention detention, that detention of the enemy during a time of war is a fundamental incident of waging war, and therefore Congress had clearly and unmistakably authorized the president to detain an American citizen, which is far more intrusive, quite frankly, than, than surveillance. And we believe that for that reason the same rationale applies with respect to electronic surveillance, which is likewise a fundamental incident of waging war.
NORRIS: And do you think members of Congress explicitly understood this?
Mr. GONZALES: Well, again...
NORRIS: Or do you think they were surprised when they read The New York Times article?
Mr. GONZALES: I, I, I'm only, I can't get into the minds of individual members of Congress. What I'm looking at is the analysis by Justice O'Connor and, and four other members of the Supreme Court. And we believe likewise electronic surveillance of the enemy during a time of war is a fundamental incident of waging war.
NORRIS: Now, you say that you've actually briefed members of Congress, but many say they don't have a fundamental understanding of how this works. How, who sets the bar and how, what are the standards for determining whether or not you're going to conduct one of these warrantless searches?
Mr. GONZALES: Well, we have been very clear in saying that we're only talking about electronic surveillance where one end of the communication is outside the United States. And we have to have a reasonable basis to believe that one party to the call is a member of al Qaeda or a member of an organization affiliated with al Qaeda, and that determination is made by a career professional out at the National Security Agency. So this is someone who's very well qualified to make the determination as to whether or not a particular person or party is somehow affiliated with al Qaeda.
NORRIS: But the question, then, as people listen to us, they wonder, if I through the course of my work, an individual may wonder, if I'm calling someone in Iraq or Afghanistan or Indonesia or Syria for reasons of business, for reasons of scholarship, a journalist talking to sources, how do you determine, distinguish between an operative and someone who's just calling an associate?
Mr. GONZALES: Well, that, that's a fair question. And I really can't get into much detail about how that is done. What I can say is that it's not a decision made by someone who's inexperienced or someone who is a political appointee put into a position to make that kind of determination. It's a decision made by career professionals.
NORRIS: For many, the controversy and their discomfort really comes down to this, that the Constitution provides specific protections against unreasonable search and seizure. And since in this case you're bypassing the court, who determines what's reasonable?
Mr. GONZALES: You're absolutely right. The, the Constitution under the Fourth Amendment prohibits unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness, and there is, has been long recognized in the courts exceptions to the warrant requirements under special needs circumstances. For example, when we to, when you go to the airport, you're searched. And there's no warrant there. When you came into this building, you were searched. And there was no warrant there.
NORRIS: But it wasn't done secretly.
Mr. GONZALES: It, it wasn't, no, but, but, but the point is, what is the purpose of the search? We don't engage in these kind of searches for law enforcement purposes. We engage in these kind of searches in order to protect the national security of this country and under a circumstance where speed and agility are absolutely necessary. We, we balance that need to protect security against the protection of the civil liberties by imposing on the program certain safeguards and protections.
The fact that you've got the inspector general of the National Security Agency, who's been involved from the very inception of this program, you've got the general counsel and career lawyers at NSA who've been involved in this program from the very beginning. Congress has been briefed over a dozen times.
NORRIS: And in regard to those briefings, there is a certain amount of head scratching on Capitol Hill, though. That many wonder why you didn't use the FISA court since they approve almost every request that comes before them. I think it's fewer than 10 that they've actually rejected. And if you have to move with dispatch and speed you can go back retroactively and seek approval within 72 hours. So, you know, beyond the question of whether or not this is legal, some are wondering whether it was even necessary.
Mr. GONZALES: People have the misconception that if we feel like we need to go up on someone, that NSA can simply go up instantaneously and then we worry about getting permission 72 hours later. It doesn't work that way. As an initial matter, when I authorize emergency authorization, the statute requires me to know, when I do that, that we have met all the requirements of, of FISA. And so it begins with a process of, of technical folks, intelligence folks, analysts out at NSA. They present it to their NSA lawyers. Then they, then that gets presented to lawyers at the Department of Justice. Then it comes to the attorney general. I have to be satisfied that, that, that within 72 hours, we will have a, a FISA application that a federal judge is going to approve. All that analysis has to be made before I make my, my, give my authorization. That's what the statute requires.
NORRIS: Okay. And just this last thing. So essentially you're not able to give details of the program. You're essentially saying, trust us.
Mr. GONZALES: Oh, no, I'm not saying that. We, we have, we have met with the Congress repeatedly and talked to the Congress about, about, about this program.
NORRIS: Alberto Gonzales, thank you so much for speaking to us.
Mr. GONZALES: Thank you.
NORRIS: Alberto Gonzales is the attorney general of the United States.