Published on Wednesday, January 25, 2006 by the Boston Globe
AG's Memo Raises Questions on Patriot Act
Suggests it's not needed for domestic spying
by Charlie Savage
A footnote in Attorney General Alberto R. Gonzales's 42-page legal memo defending President Bush's domestic spying program appears to argue that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law's investigative powers against terror suspects.
The memo states that Congress gave Bush the power to investigate terror suspects using whatever tactics he deemed necessary when it authorized him to use force against Al Qaeda. When Congress later passed the Patriot Act, Bush already had the power to use enhanced surveillance techniques against Al Qaeda, according to the footnote.
Thus, legal specialists say, the administration is asserting that Bush would be able to keep using the powers outlined in the Patriot Act for Al Qaeda investigations, regardless of whether Congress reauthorizes the law.
''It turns out they didn't need the Patriot Act for dealing with Al Qaeda after all," said Martin Lederman, a former Justice Department lawyer in the Clinton administration who now teaches law at Georgetown University.
Dennis Hutchinson, a University of Chicago law professor, and Bruce Fein, a former Justice Department lawyer in the Reagan administration, also said the administration's footnote indicates that Bush would not need Congress to renew the Patriot Act to keep using its investigative powers in the war on terrorism.
But Justice Department spokesman Brian Roehrkasse disputed their interpretation.
''This is an inaccurate and misinformed interpretation of the administration's legal analysis," Roehrkasse said in an e-mail. Roehrkasse attached a Justice Department statement arguing that Congress gave Bush broad wartime powers to fight the war on terror as he saw fit when it authorized him to use force against Al Qaeda. The footnote, it said, seeks to explain why those wartime powers include surveillance authority even though Congress separately addressed the subject in the Patriot Act.
The Patriot Act, the Justice Department said, affected far more than Al Qaeda. The act made changes to surveillance laws for use against foreign spies and terrorists who are not affiliated with Al Qaeda. The act also made it easier to use surveillance information as evidence if the administration prosecuted an Al Qaeda suspect in court, the department said. But Fein, the former Reagan administration lawyer, said the footnote in the Gonzales memo can only mean that the Patriot Act is irrelevant to the tactics used to investigate Al Qaeda. According to the memo, he said, Bush could continue to use Patriot Act techniques in investigating possible Al Qaeda plots even if Congress lets the Patriot Act expire.
''Under the position they are staking out in the footnote and throughout the memo, the debate over the Patriot Act is superfluous," Fein said. ''The president is flailing Congress for refusing to act on a matter that he says is irrelevant to the war anyway, because he can do all of these things under the authorization to use military force."
The Patriot Act has been the subject of intense debate in Congress. It is set to expire Feb. 3 under a new deadline set last month after Congress deadlocked over whether some of its provisions violate civil liberties. Bush has demanded that Congress extend the act, warning that allowing the powers to expire could cost American lives.
''The Patriot Act may be set to expire, but the threats to the United States haven't expired," Bush said in a speech Monday. ''Congress extended this Patriot Act to Feb. 3. That's not good enough for the American people, it seems like to me. . . . they need to make sure they extend all aspects of the Patriot Act to protect the American people."
But the footnote in the memo suggests the government does not need the Patriot Act to aggressively investigate Al Qaeda suspects, the scholars said. The footnote says Congress gave Bush the power to set his own rules for counterterrorism investigations when it authorized the president to use ''all necessary and appropriate force" against Al Qaeda a week after the Sept. 11, 2001 attacks.
Instead, the memo said, the Patriot Act simply gave the government new investigative powers to use against non-Al Qaeda terrorists and ''in contexts unrelated to terrorism."
''The USA Patriot Act amendments made important corrections in the general application of" existing laws governing searches and wiretaps, the footnote said, adding that the act was ''not intended to define the precise incidents of military force that would be available to the president in prosecuting the current armed conflict against Al Qaeda and its allies." Hutchinson, the University of Chicago law professor, said that in trying to show that Congress gave Bush unlimited powers to investigate possible Al Qaeda plots, the administration has contradicted its arguments that it is necessary for Congress to reauthorize the Patriot Act in order to protect the nation from terror threats.
''It muddies the waters," Hutchinson said.
Pressed by the Globe during a briefing last week, White House spokesman Scott McClellan refused to answer directly when asked whether Bush had the power to authorize the FBI to keep using Patriot Act-style techniques when hunting for Al Qaeda suspects even if Congress lets the law expire.
The White House press secretary said Bush would ''continue to use every lawful tool at his disposal to prevent attacks and to defeat the terrorists" -- without defining what tools Bush believed were lawfully at his disposal.
''We always look at what authorities we have in order to move forward and to prevent attacks from happening," McClellan said. ''The Constitution spells out very clearly that the role of the president is to protect Americans from all enemies, foreign and domestic. And the terrorist threat is the number one threat that we face."