Gonzales’s Tortured Logic on NSA Surveillance

gonzales1a.jpgAttorney General Gozales brought out some new arguments in defense of the warrantless NSA surveillance program. He should have kept these arguments in the bag, as they are flatly wrong. For example, according to the AP:

Gonzales told his audience: “You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime.”

Indeed, FISA authroizes electronic surveillance more generally “for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811. But how does this justify warrantless surveillance that continued far beyond 15 days and that continues to this day? Notwithstanding whether the Authorization to Use Military Force is the equivalent to a declaration of war, this FISA provision indicates that FISA explicitly contemplated the situation the President faced and established a rule — he could engage in warrantless surveillance for 15 days. I have yet to understand how a provision that allows the President to engage in warrantless surveillance for 15 days can be used to justify indefinite warrantless surveillance. Give ’em a nickel, and they take a dime dollar unlimited amount.

Here’s another gem:

The reasonable basis standard, said Gonzales, “is essentially the same as the traditional Fourth Amendment probable cause standard.”

Nope. The standard is entirely different. The reasonable basis standard is far lower than probable cause. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Gonzales should know.

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51 Responses

  1. Just thinkin says:

    If an organization or country or entity declares war on the U.S., and actually attacks the U.S., do we have to actually declare WAR for us to be at WAR? And do we have to actually declare WAR for the president to then have the “inherent” responsibility to protect Americans, when WAR was declared against us? If it is reasonable to assume the president has the “inherent” responsibility, then does he have to conduct himself with his hands tied behind his back, or can he assert that he does not? It maybe that he does not want FISA to be ammended because to continue to ammend and update or shape FISA to support what he wants to do, is to admit he does have his hands “tied”.

    If you listen to everything (calls) coming in, are you gathering information on a specific person? or just listening for keywords? If you are not gathering info on specific persons, has the law been violated?