Thank you, Dean.
Just after dawn on September 11th, 2001, I flew out of Dulles Airport less than an hour before the departure from the same airport of American Airlines Flight 77, the plane that was hijacked and crashed into the Pentagon later that morning. When I arrived in Norfolk, Virginia, to give a speech, the North Tower of the World Trade Center had been hit. By the end of my remarks, both the North and South Towers stood shrouded in smoke and flames with many desperate people jumping to their deaths, some 90 stories below. I spent much of the rest of that horrible day trying to get back to Washington to assist the President in my role as White House Counsel.
Everyone has a story from that morning. Up and down the East Coast, men and women were settling into their desks, coming home from a graveyard shift, or taking their children to school. And across the rest of the country, Americans were waking up to smoldering ruins and the images of ash covered faces. We remember where we were, what we were doing … and how we felt on that terrible morning, as 3,000 innocent men, women, and children died, without warning, without being able to look into the faces of their loved ones and say goodbye . . . all killed just for being Americans.
The open wounds so many of us carry from that day are the backdrop to the current debate about the National Security Agency’s terrorist surveillance program. This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda. This program is reviewed and reauthorized by the President approximately every 45 days. The leadership of Congress, including the leaders of the Intelligence Committees of both Houses of Congress, have been briefed about this program more than a dozen times since 2001.
A word of caution here. This remains a highly classified program. It remains an important tool in protecting America. So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. And unfortunately, they have caused concern over the potential breadth of what the President has actually authorized.
It seems that everyone who has heard of the President’s actions has an opinion – as well we should regarding matters of national security, separation of powers, and civil liberties. Of course, a few critics are interested only in political gains. Other doubters hope the President will do everything he can to protect our country, but they worry about the appropriate checks upon a Commander in Chief’s ability to monitor the enemy in a time of war.
Whatever your opinion, this much is clear: No one is above the law. We are all bound by the Constitution, and no matter the pain and anger we feel from the attacks, we must all abide by the Constitution. During my confirmation hearing, I said that, quote, “we are very, very mindful of Justice O’Connor’s statement in the 2004 Hamdi decision that a state of war is not a blank check for the President of the United States with respect to the rights of American citizens. I understand that and I agree with that.” Close quote. The President takes seriously his obligations to protect the American people and to protect the Constitution, and he is committed to upholding both of those obligations.
I’ve noticed that through all of the noise on this topic, very few have asked that the terrorist surveillance program be stopped. The American people are, however, asking two important questions: Is this program necessary? And is it lawful? The answer to each is yes.
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The question of necessity rightly falls to our nation’s military leaders. You’ve heard the President declare: We are a nation at war.
And in this war, our military employs a wide variety of tools and weapons to defeat the enemy. General Mike Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, laid out yesterday why a terrorist surveillance program that allows us to quickly 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 they are and what they’re doing – we have to collect more dots, if you will, before we can “connect the dots.” This program to surveil al Qaeda is a necessary weapon as we fight to detect and prevent another attack before it happens. I feel confident that is what the American people expect … and it’s what the terrorist surveillance program provides.
As General Hayden explained yesterday, many men and women who shoulder the daily burden of preventing another terrorist attack here at home are convinced of the necessity of this surveillance program.
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Now, the legal authorities. As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. I expect that as lawyers and law students, you are too.
The Attorney General of the United States is the chief legal advisor for the Executive Branch. Accordingly, from the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. No other public official – no mayor, no governor, no member of Congress -- is charged by the Constitution with the primary responsibility for protecting the safety of all Americans – and the Constitution gives the President all authority necessary to fulfill this solemn duty.
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 uniformly 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.
If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies. The terrorist surveillance program was authorized in response to the deadliest foreign attack on American soil, and it is designed solely to prevent the next 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 9/11 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 inherent constitutional powers. It comes directly from Congress as well.
Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, 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, quote, “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.
The Resolution means that 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, were we to employ the three-part framework of Justice Jackson’s concurring opinion in the Youngstown Steel Seizure case, the President’s authority falls within Category One, 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 Force Resolution in the Hamdi case. 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.
