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The Attorney General on Legality of Intercepts

This is a partial transcript of "Special Report With Brit Hume" from Feb. 3, 2006, that has been edited for clarity.

JIM ANGLE, GUEST HOST: The friction between the Congress and the Executive Branch will be on full display Monday when the Senate Judiciary Committee questions attorney General Alberto Gonzales about the legality of the National Security Agency’s wiretap programmed aimed at terrorist communications to and from the United States.

In an interview with the attorney general, we asked one of the questions that puzzle members of Congress: why the administration did not use the law that governs intelligence intercepts, the Foreign Intelligence Surveillance Act , or FISA.

(BEGIN VIDEOTAPE)

ALBERTO GONZALES, ATTORNEY GENERAL: FISA has been a very important tool on the War on Terror. The purpose is to gather foreign intelligence. And winning the war on terror means winning on the war on information, so FISA and the use of FISA has increased dramatically following the attacks of September 11th.

But FISA is only one tool and it is not as effective as it could be under certain circumstances.

People have this notion that I could simply authorize an emergency authorization under FISA and go up immediately on someone that we believe may be a member of Al Qaeda . But it takes a period of time.

And we have to prepare paperwork that has to be approved by analysts at NSA; have to be improved by lawyers out at the NSA; comes over to the Department of Justice; my lawyers have to approve it; and then it comes to me before I actually approve it.

There is a very detailed process. It can be quite cumbersome at times, quite frankly. It can take days, it can take weeks, it sometimes will take months to get a FISA application ready to go and approved.

We don’t have months. We don’t have weeks, we don’t have even days in certain cases to deal with this new kind of threat. And that’s why the president believes it was important to rely upon this additional tool.

If we can use FISA, we use FISA. But if FISA can’t work, doesn’t work, then we use this additional tool.

ANGLE: Now, in 2004, Justice Department officials reportedly suspended the program temporarily in order to make sure that it protected civil liberties. Tell me about that.

GONZALES: Only the president of the United States can authorize a program and only the president of the United States can suspend this program.

We have had a number of lawyers, very smart people, experts in this area, look at these issues. There has been a great deal of debate and discussion.

It’s reviewed every 45 days to ensure that the program continues to be necessary, to ensure that the program is as narrow as it needs to be, to ensure that the threat against America continues. The Department of Justice doesn’t rubber-stamp the decisions by the White House .

ANGLE: That’s what I’m asking about because, as we understand it, Justice Department officials did have some concerns at some point in 2004 and some care was taken to make sure that civil liberties were indeed protected.

Can you describe that process to me? Can you tell me what went into that thinking?

GONZALES: I hesitate to go into detailed discussions about internal discussions that may have occurred at the Department of Justice or between the department and the White House.

The fact that the program may be recalibrated in one way or another, I think, is a good thing. And what I can say is that the president has authorized us to engage in those activities that he believes is absolutely necessary to protect this country against an attack from Al Qaeda.

ANGLE: You have made a long argument about the president’s legal authorities. There is a difference of opinion on this. And without going into the details on the legal arguments, which you will get into Monday, how do you see this getting resolved? Is this going to be resolved in negotiations with Congress in new laws? Or is this likely to go to the Supreme Court in order to finally determine whether the president has the authority to do what he is doing?

GONZALES: It’s hard for me to predict how this is going to ultimately be resolved. We have been making our case about the legal authorities. I think the president has effectively persuaded the American people that this is a very effective tool that we need to do it.

If questions remain in the minds of some members of Congress, that the legal authorities are not there or even if they are there, the Congress may believe that it’s good for national unity that we all speak with one voice. And they may decide that legislation would be a good thing for that reason.

You know, I just don’t know. One thing I am certain of is that I believe very strongly as attorney general of the United States that the president does have the authority to engage in these activities. I think the Congress supplemented his constitutional authority through the authorization to use military force.

But even if Congress were to say Monday that, "No, we didn’t do that, we didn’t intend to do that," I would say that the president of the United States does have the inherent authority as commander in chief during a time of war to engage in electronic surveillance of the enemy.

ANGLE: The key concern in all of this, in this program and what the president is doing, is what General Hayden refers to as hot pursuit of terrorists. Is that what we are talking about that makes FISA difficult to use under these circumstances?

You were talking about the delays and how long it takes. Give me a sense of what you mean by hot pursuit.

GONZALES: I indicated earlier that it might take months. It might take weeks. It may take days to get a FISA application approved.

ANGLE: And in the meantime you can’t listen?

GONZALES: And in the meantime we don’t get free surveillance. We don’t get to engage in free surveillance for 72 hours until we submit our written application. We have to be sure we can meet the requirements of the statute.

Sometimes we don’t have 72 hours. Sometimes we believe we know that some member of Al Qaeda is going to be communicating with someone and we think it’s important to know why they are communicating with someone in the United States. And I think the American people expect us to ask that question.

(END VIDEOTAPE)

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