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The NSA Anti-Terrorist Spying Program By: Jon Kyl
FrontPageMagazine.com | Wednesday, March 08, 2006

Sen. Jon Kyl, R-AZ, gave the following speech at Restoration Weekend, which took place at the Arizona Biltmore in Phoenix from February 23-26, 2006. -- The Editors.

U.S. Sen. Jon Kyl, R-AZ: I want to talk about a very serious subject this morning and, to do that, I’m going to actually read a text so that I get it right. But first, Ken Williams is here. Ken is with the Federal Bureau of Investigation, the FBI. He’s here in the state of Arizona and he is one of the great public servants who helped to bring to the attention of the American people some of the problems associated with our intelligence prior to 9/11. He was the author of the famous “Phoenix Memo” dealing with the guys who were trying to learn how to fly out here, as you’ll recall.

There’s a real parallel between what I want to talk about today and the events leading up to 9/11. I’d like to set the stage this way. Remember that before September 11th, there were heroes like Ken Williams and others who were pointing out problems and were identifying leads that they felt needed to be investigated. In some cases, they were trying to get warrants to get information, for example, from the computer of Zacarias Moussaoui, the 20th hijacker.


But they were being thwarted because there were institutional barriers to their ability to proceed. Right after 9/11, many of the folks who instituted those barriers demanded to know how 9/11 could have happened. Of course, the answer, in large measure, was the institutional barriers that were put up to prevent the kind of intelligence gathering and law enforcement that’s necessary to deal with terrorists.


As I’ll note in just a moment, the War on Terror is not generally fought with tanks, planes, and ships. It’s fought with good intelligence. That’s what I want to talk about today: the NSA Surveillance Program, an indispensable tool for protecting America.


I didn’t think that I was going to have to talk about this. But there is so much misinformation about this program and the legal basis for it, that I felt it important to revisit the issue with leaders in this country, people who have the capability to go back to their communities and discuss it in such a way that we can again remind the American people of what’s at stake and why what we’re doing is perfectly legal and lawful and why we need to continue to do it. I’ll conclude with a couple of remarks about some things that Congress might want to do to make it even better.


We are in a protracted struggle. Jim Woolsey and I chair the Committee on Present Danger—well, actually, Jim does all the work and Joe Lieberman and I are the honorary chairs of it—but we pointed out that this is a protracted conflict with an evil group whose ambition is simple, and that is to kill Americans, whenever they can, however they can, in whatever way they can, and to try to destroy our way of life. This enemy wears no uniform. It can hide among our population for many years, as it did before 9/11. But there’s one bit of good news and that is that, as a general proposition, they’re spread out all over the world in their different franchises and they need to communicate with each other. That need for communication gives us an opportunity and that opportunity is what we take advantage of with good intelligence.

The NSA Surveillance Terrorism Program, as I said, is necessary. Here’s what General Hayden said about it. “There are no communications more important to the safety of this country than those affiliated with al-Qaeda with one end in the United States.” And I submit to you that it would be unacceptable if the president did not utilize the capabilities that we have to take advantage of this intelligence fact.


I would also note that, from the beginning, when this was exposed—unlawfully, I might add—the initial reaction was, “How dare the president do this?” It quickly transformed into, “Maybe the program isn’t legal.” Because the reaction of the American people was, “How dare the president not do this, if we have the capability?” So at least we’ve moved the debate forward a little bit.

The program includes a number of key protections, and since we don’t know a lot about how the program works, let’s at least focus on what some of the protections are, as we define them, to move forward.


First of all, we know that the program intercepts only communications where at least one of the communicants is located outside of the United States and at least one is known or suspected to be a member of al-Qaeda or an affiliate of al-Qaeda. That seems plain enough. U.S. identities are removed when they are not essential to understand the intelligence reports. The President re-authorizes this program every 45 days. Leaders of the House and Senate and the two intelligence committees have been continually briefed. The Inspector General is directly involved in this program and his review of it is extensive, so there are a lot of protections built into this program.


Now, there are three basic arguments that have been made by the opponents of the program or, if not the program, at least the way it’s been conducted, and I would generally suggest that most of them are opponents of the administration.


The first argument is that it’s illegal. In the Judiciary Committee’s hearing with the attorney general of the United States, the president was accused of criminal activity, of illegal activity conducting warrantless searches on Americans. Now, those people are dead wrong. There are two specific reasons why the president has the authority to conduct this operation: one is his Constitutional authority; the other is his statutory authority.


Briefly reviewing the Constitutional authority, under Article II of the Constitution, included in his capacity as the commander in chief of the military, the president has the responsibility to protect the American nation from further attacks and the Constitution gives him the necessary authority to fulfill that duty. Now, that’s basically the language from a series of cases going all the way back to 1863 and it has never been questioned. Presidents have repeatedly relied upon their inherent authority, their inherent Constitutional power, to conduct warrantless surveillance for foreign intelligence purposes, both diplomatically and militarily. The federal courts have consistently upheld this longstanding practice.


You know the examples in history: Woodrow Wilson did it, as did Franklin Delano Roosevelt. Can you imagine Roosevelt going to court first and saying, “Would it be okay if I try to intercept the Japanese code? Or the Nazis communicating with somebody in this country?” People would have thought him nuts. No president has ever felt that he had to get some kind of preliminary approval from some court. In a 2002 case of the review panel of the FISA court, that’s precisely what the court held, in a case called In Re: Sealed Case. Incidentally, if you’d like to see a very nice little summary of that case and the way it was argued, Byron York has a piece in the National Review, the February 27 issue, that is well worth reading and I recommend it to you. I’m just going to quote one paragraph from it, because it quotes from the key case here.


Referring to an earlier case known as Trong, which dealt with surveillance before FISA was passed, the court of review writes, and I quote:


The Trong court, as did all the other courts to have decided the issue, held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” Now, here’s what the court said, “We take it for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the President’s Constitutional power. Thus establishing two propositions: the president’s authority is inherent and Congress can’t take it away.”


That’s basic Constitutional law. So the case stands for both propositions: inherent authority and the fact that, when Congress passed FISA, it did not and could not have erased the president’s Constitutional authority.


Now the second pillar of the president’s authority is statutory and it is the Congressional Authorization for the Use of Military Force, which we passed on September 18, 2001, following the attacks on Washington, D.C., and New York City. When we acted in this authorization, we did two things: (1) we expressly recognized the president’s inherent Constitutional authority; that’s embedded in the language; and (2) we expanded that authority to—and I’m quoting—“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Specifically, al-Qaeda.


In the Supreme Court case decided after that, Hamdi v. Rumsfeld, the Supreme Court confirmed that the expansive language of this Congressionally authorized use of force, “all necessary and appropriate force,” ensures that the Congressional authorization extends to traditional incidents of war. Now, if it extended to the killing and detention of the enemy, then, as we lawyers would say, a fortiori, it would extend to listening into their communications. That’s a lesser activity than killing or detaining someone.


The bottom line is that the president has this authority confirmed by the United States Supreme Court, both from the Constitution and from the statute that we passed.


There is a second argument and that is that FISA is the sole authority for surveillance and it must be used or else amended. Now, note that this argument rejects the Constitutional pillar that we just talked about. So it’s wrong to start with. But let’s examine the context just statutorily. Is FISA the only tool that we have to fight terrorism? Ken Williams knows the answer to that is no! We have lot of different tools in our arsenal to fight terrorism and to gain intelligence. The FISA is one of them. The Patriot Act is another. There are a lot of other statutes. There are a lot of other things that we do to gather intelligence and to take action based upon that intelligence.


So FISA is not the only way in which we do this. It is a useful but not the only tool.


Secondly, FISA, by its own terms, recognizes that there can be exceptions that Congress can establish, even to do the kind of things that FISA does. It specifically allows for changes as authorized by statute, and the authorization of force passed on September 18 provides that authorization. the attorney general testified before the Committee that FISA prohibits persons from intentionally engaging in electronic surveillance under color of law, except as authorized by statute, and it is the authorization of use of military force that provides that relevant statutory authorization for the terrorist surveillance program as the Hamdi Supreme Court decision makes clear.


Next point: what about the use of FISA in this situation? Aren’t there some cases where it could be used, like the 72-hour exception? Well, no, it turns out that FISA is not really very useful for the particular kind of activity that’s engaged in here and nobody in this room really has been briefed to understand exactly what’s being done. But, it’s easy to understand that not every glove fits every hand and the way that this particular program has operated might not fit well under the 1978 FISA statute, as we drafted it before this activity was even known to us.


The agility with which we need to act, the flexibility that we need to have in today’s intelligence gathering makes it clear that FISA is not well suited for that. Actionable intelligence, as Jim Woolsey can tell us, has a very short shelf life. General Hayden has made this point, testifying that FISA—and I’m quoting him—“FISA is not optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already has combatants inside the United States.” So FISA is not the right tool for this particular kind of activity.


And what about this 72-hour provision? It is not useable for this situation for a couple of different reasons. But one thing you should know is that it doesn’t excuse the attorney general or the Department of Justice from having to prove the very same things that they have to prove in any other situation. They’ve got to get a bunch of lawyers to sign off on the particular activity that they want to engage in; the Department of Justice has to then authorize that. Finally, the attorney general has to certify, in advance, that he will be able to prove after the fact what he can’t prove now. Therefore, that the surveillance meets the requirements of FISA. As soon as possible thereafter, but within 72 hours, he’s got to file all the evidence of that.

Well, apart from the fact that it takes a stack of papers as high as this podium and a bunch of lawyer time and work to try to put all of this together, that’s something he can’t certify to, because he doesn’t know before they turn on whatever it is that they turn on to sort this stuff out, what they’re going to find. It’s not a standard wiretap activity, where you know where you’re going and you get a wire tap to tap a particular phone. the attorney general probably doesn’t know what he’s going to get out of the particular surveillance until after the fact and, since he can’t certify in advance, that 72-hour provision doesn’t work.


The third point is—and this has a little bit more merit to it—and that is that Congress should have more oversight. There’s a concomitant argument to this, and that is that courts should have more oversight. I submit to you that courts should not have not more oversight but that it would be useful for Congress to have more oversight here. It should be noted, however, that it’s difficult to grant Congress more oversight authority when the very people who want to be more knowledgeable about the program briefed into it are some of the very people who applaud the fact that the program is leaked to the New York Times—to our enemies as well as our citizens. You can’t be celebrating the leaks and then ask to be briefed.


One of my colleagues in the Senate came up to me after I made this point in another context. He said, “I don’t like the fact that you quoted me.” I said, “Well, I quoted you accurately.” “Well, but you didn’t real the whole quote.” I said, “Yes, I did.” He said, “Well, you took it out of context.” I said, “No, I didn’t.” He said, “I’ll quote you.” I said, “That’ll be fine with me.”


Here’s what my good friend Patrick Leahy said: “Thank God we have a press that at least tells us what the heck you guys are doing, because you are obviously not telling us.” Now that was in the hearing with the attorney general, with specific reference to this program. While he, I guess, was telling me that he didn’t really mean what he said, the bottom line is, you can’t be celebrating the leak of the existence of this program and then ask to be in charge of the program.


We’ve got to be very careful about how we provide additional oversight. I guess that’s my main point here. I’ll quote CIA Director Goss, who says, “I’m sorry to tell you that the damage has been very severe to our capabilities to carry out our mission.”


What kind of oversight might be both helpful and workable? Well, Senator Specter has a proposal, which I respectfully disagree with. He says we should get an advisory opinion from the FISA court. Now, those of you who understand Constitutional law, Attorney General Meese will recognize this point, the attorney general wouldn’t touch this with a ten-foot pole. First of all, it’s an advisory opinion, and the court never gives advice. Remember the hearings with Alito and Roberts? Both made the point: the Court can only take a case that comes before it with real parties and real facts, then make up its mind based upon the facts of that particular case. We don’t sit around saying, “Yeah, we think that statute might be Constitutional.” And so the Court isn’t going to take it. It’s called “a non-justiciable issue.” The case is not right. That’s not a right case or controversy with real parties and issues.


Secondly, the Court would probably contend that it’s a political question and therefore not decide the case. This is, by the way, quite appropriate, where you’ve got a tug-of-war between authorities that are inherent in all three branches of our government and there’s no real right or wrong answer to who has the last word. The war powers are very much like this. Constitution gives us both the authority to the President and the Congress, to declare and to conduct war. We’ve been fighting over it ever since.


Around 1974, Congress passed a law that decreed that the only way that we can go to war is if the Congress declares war. And every president since then has been saying, “I don’t agree with this, but we’ll cooperate as best we can.” The bottom line is the branches of government have to cooperate with each other. One way the Court does that is by not getting involved in matters that involve this inherent conflict between the legislative and judicial branch, unless it’s absolutely necessary to do so and the Court can relatively easily do it.


I don’t think that that’s a good idea.


Another idea is that we’ve got to amend FISA to authorize this activity. No, we don’t, for the reasons that I explained earlier.


There’s a third approach, which is a lot closer to my own view. I believe that we can provide more oversight by Congress without unduly compromising the program at all. My colleague Mike DeWine says, while it may not be necessary for Congress to act to recognize this program politically it would be a good thing to do. And that’s a little bit like this concept of comedy that I mentioned before. Let’s not argue about who has what authority. Let’s say this is a program that’s a good program. We want it to exist and therefore we acknowledge the president’s doing it, and that’s okay with us. Then you don’t have to get into this big fight about whether we’ve got the last word on it or not. That could be done by legislative action, for example. It could be a separate statute. It could be an explicit exemption from FISA that says, if you’re conducting surveillance where one end of the surveillance is in another country and it involves a known member of al-Qaeda or an affiliate, then you’re exempted from FISA. At least it would make it clear that Congress has no problem with the program.


The part to me that’s more meaningful, because it answers the key question, is this oversight. The only question the opponents of the program have that I think that has merit is, “How do we know it’s not being abused?” Think fill-in-the-blank your favorite leftist as president and an attorney general that you’re not sure that you absolutely trust. So it’s a legitimate question that you need to answer. How do we know that it’s not being abused? I think the way that you know that is to require that members of Congress, in this case, it would be members of the intelligence committees in the House and Senate, be briefed every 45 days, like the president is, on how the surveillance program has done.


Now, I served on the intelligence committee for eight years. I got a lot of good information. But in many cases, I did not know exactly how we got the information. That’s sources and methods, and I didn’t need to know. But I did need to know what they figured out the facts were or they thought they were. It’s very easy to say, “Look, the results over the last 45 days were, let’s say, pretty good. We got 15 or 16 communications that tipped us off to certain kinds of operations and here’s what we were able to do as a result of that. By the way, there were even none or there were one or two, let’s say, inadvertent surveillances of domestic sites, of somebody in the United States, of a U.S. person, and it occurred the following way and we’ve taken some steps to see that it doesn’t happen again.”

There’s a point at which you couldn’t say what steps are taken to make sure it didn’t happen again because you’d been getting into operational details. But you could even brief those kinds of things to the so-called “Big 8,” the chairman and ranking member of the two intelligence committees. You couldn’t talk a lot about the guidelines because that’s getting into operational details, but you could talk a lot about everything up to that point.


So you could clearly find out every 45 days how the program’s been going and whether there have been any inadvertent surveillances and whether there was any damage from those surveillances or, as soon as human eyes saw it, they ripped it up and threw it away, or whatever happened; in any event, steps that were taken to make sure it didn’t happen in the future.


There are ways to provide oversight, in other words, that wouldn’t compromise the program and would answer that all-important question: how do we know that it’s not being abused? Now, some people would say, “Well, how do we know they’re telling us the truth?” Of course, at some point, you have to trust somebody. The Inspector General could be the person that certifies this information. There are plenty of ways to provide information that Congress would have total confidence in.


The bottom line is, unless you’re just an opponent of the administration, you’re going to find a way to make this work. I would hope that in the ensuing debate that we have about this, we get over the demagoguery and the partisanship and appreciate the fact that, even if our opponents are willing to acknowledge that it’s a program worth having, we would want to make sure that the program was not compromised and could continue to operate, to the extent it hasn’t been compromised so far.


That’s what I think we can accomplish. I think there are ways to do it and, if people will approach that constructively, we can get the job done and still maintain the security of the people of the United States of America, which after all, is our number one priority.

Thank you, David.


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Jon Kyl is a Republican Senator from Arizona.

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