Gonzales: Bush had "inherent" authority to violate spying law

The legal defense begins, and it is breathtaking.

By Tim Grieve
Published December 19, 2005 3:27PM (EST)

Attorney General Alberto Gonzales has just launched the administration's legal defense of the president's decision to order warrantless spying on American citizens.

It's breathtaking, even if it's not unexpected.

While acknowledging that the president's program would be illegal under the Foreign Intelligence Surveillance Act of 1978, Gonzales says that the president has inherent authority as commander in chief to do what he thinks needs to be done in the war on terror. Moreover, Gonzales says, Congress essentially overturned FISA when it authorized the president to use force against Afghanistan in 2001.

The first of Gonzales' arguments -- familiar to anyone who has heard the administration defend its views on detainees and torture -- is alarming in that it knows no limits. If the president's "inherent" authority as commander in chief allows him to ignore the Foreign Intelligence Surveillance Act during times of war, what other laws is he free to ignore, rewrite or violate at his pleasure?

As for Gonzales' second argument? It probably goes without saying -- but the Washington Post says it anyway -- that the 2001 use-of-force authorization didn't say anything about electronic surveillance or FISA or spying on Americans without getting warrants. That legislation authorized Bush 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."

How is listening in on telephone calls without a warrant the use of "necessary and appropriate force"? Gonzales didn't say, exactly. And the answer is, it isn't. As Sen. Russ Feingold explained during a television appearance this morning, "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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