Cornyn: Al Qaeda Surveillance Program Targeted, Legal, Necessary

Cornyn: Al Qaeda Surveillance Program Targeted, Legal, Necessary

One thing is certain: FISA may be adequate for law enforcement, but it is clearly not designed for battlefield surveillance

U.S. Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee and chairman of the Emerging Threats and Capabilities subcommittee, made the following statement Monday regarding the National Security Agency's Surveillance Terrorist Program and wartime executive power:

The last time the Judiciary Committee gathered together we were considering the President's nomination of Judge Samuel Alito to the Supreme Court. Justice Alito has since taken his well-deserved seat on our nation's highest court. I thank the chairman for his efforts to conduct those confirmation hearings in a fair and dignified manner.

Justice Alito's nomination is now in the Senate's rear view mirror. But sadly, after listening to some of my colleagues' remarks, it is clear that we haven't left behind the divisive, partisan rhetoric that tainted the Alito hearings. The American people have voiced their disgust with this divisiveness and partisanship. They were repulsed by the unfair treatment of Judge Alito. This hearing presents an opportunity to rehabilitate the Senate's reputation—an opportunity to tone down the rhetoric and restore some civility.

Several members have asked why the President has been reluctant to make the Congress a full partner in waging the War on Terror. While I disagree with their premise, I submit that those who are unhappy with the President's cooperation need only look at the behavior exhibited during the Alito nomination hearings. If my colleagues sincerely want the President's cooperation, then they should be willing to meet him halfway—with sincerity, civility, and seriousness.

This hearing should be focused on complex legal issues. This is neither the time nor the place for partisan posturing and point-scoring. We are in the midst of a global war against an enemy who not only opposes our cherished freedoms, but opposes our very existence. That should be the starting point for our discussion of the legal authorities for the NSA's warrantless surveillance of al Qaeda.

On September 14, 2001, just three days after al Qaeda waged war in the American skies and on American soil, Congress passed a joint resolution authorizing the President to use all necessary force against the responsible terrorist organizations. The use of force resolution, styled as the Authorization for the Use of Military Force ("AUMF"), was signed by the President on September 18, 2001.

From a legal perspective, the AUMF is a key document bearing upon the President's authority to direct the NSA to conduct warrantless surveillance against al Qaeda. The AUMF authorized the President "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."

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Pub. L. No. 107-40 § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001). History and current practice demonstrate that Congress fully empowers the President to conduct war within the terms of force authorizations like the AUMF. Through the AUMF, the political branches of our government provided clear indication that the conflict with those parties responsible for the 9/11 attacks—which we later concluded was al Qaeda—is a war demanding a full military response by the President, who is the Commander-in-Chief of our armed forces.

The Supreme Court recognized the importance of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, the Court recognized that the AUMF authorized the President to take such actions against al Qaeda which are "fundamental incidents of waging war." 542 U.S. at 519. Gathering critical battlefield intelligence against the enemy at which the AUMF is directed—namely, al Qaeda—is undoubtedly a fundamental incident of waging war. Signals intelligence, which today includes the NSA's electronic surveillance activities, has been a critical part of military conflicts throughout our nation's history. Some examples of wartime signals intelligence include the interception of British mail during the Revolutionary War, the wiretapping of telegraph communications during the Civil War, and the interception of Axis communications during World War II that helped the Allies destroy the German U-Boat fleet and win the Battle of Midway.

Ironically, some of the President's critics contend that when Congress, through the AUMF, authorized the President to kill, capture, or confine al Qaeda, it somehow prevented him from intercepting al Qaeda phone calls or emails—whenever they contact someone inside the United States or contact someone from within this country. These critics contend that the President must strictly adhere to the procedural requirements of the Foreign Surveillance Intelligence Act of 1978 ("FISA"). FISA was designed to provide a way to gather foreign surveillance in a way that would allow the admittance of evidence in a criminal prosecution. One thing is certain: FISA may be adequate for law enforcement, but it is clearly not designed for battlefield surveillance.

Finally, it must be noted that the AUMF supplemented the President's inherent authority to conduct warrantless surveillance for foreign intelligence purposes. Numerous presidents have utilized that inherent authority, which cannot be destroyed by statute. The FISA Court of Review, created by FISA in 1978 to oversee the FISA Court, made clear in its first appellate decision that the President has inherent authority to conduct warrantless surveillance outside of the confines of that statute. According to the FISA Court of Review, "all the other courts to decide the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority, and assuming that is so, FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). FISA could not possibly have imagined all of the technological advancements and potential scenarios that implicate warrantless surveillance for foreign intelligence purposes, and, indeed, it obviously did not. It is crucial that the President as Commander-in-Chief has inherent authority in this arena in order to act with speed and decisiveness when necessary.

In sum, I have taken a long and serious look at the legal authorities governing the NSA program that is the focus of this hearing. It is misleading to characterize the NSA program as some sort of broad-based ‘domestic' spying on U.S. citizens. The NSA program is narrowly focused. It targets the international communications of al Qaeda in an effort to connect the dots and prevent another 9/11. Thus, the program is entirely consistent with the terms of the AUMF and the directive it gave the President to wage war against al Qaeda.

Cornyn served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge. He is the only former appellate court judge in the Senate.

http://cornyn.senate.gov/index.asp?f=record&lid=1&yid=1&rid=237099&pg=1