Rachael Le Goubin | Staff Photographer
Former U.S. attorney general Alberto Gonzales speaks with Ken Gormley, dean of the Duquesne University School of Law, about the government’s involvement in civilian privacy since 9/11 at the morning lecture program Friday in the Amphitheater.
Ten days after the Sept. 11 attacks, Sandra Day O’Connor, at the time a Supreme Court Justice, spoke at Duquesne University School of Law. Constitutional law scholar Ken Gormley recalled part of O’Connor’s speech that he “couldn’t shake out of [his] mind.”
“Our nation and our laws will never be the same,” Gormley said, roughly quoting O’Connor in the Amphitheater on Friday. “We’ll have to wait to see how it plays out, but we’ll never return to the world that we had before Sept. 11.”
Gormley was in conversation with Alberto Gonzales, who was serving as White House counsel on 9/11. Gonzales recalled his own memory of the attacks and their aftermath.
“We knew fundamentally that things were different,” he said, but added that “nobody was scared. We had a job. Our job was to protect you.”
In doing that job, the executive branch launched programs that have caused controversy in the nearly 13 years since the Sept. 11 attacks. Surveillance programs by the National Security Agency, use of drone warfare in the Middle East and torture of prisoners at facilities like the Guantanamo Bay detention camp have evidenced a more powerful executive branch since 9/11. Gormley, the dean of the law school and a professor of constitutional law at Duquesne University, questioned Gonzales about his actions and observations as White House counsel and U.S. attorney general during President George W. Bush’s administration. Their conversation was the fifth installment in this week’s morning lecture theme, “The Ethics of Privacy.”
Gonzales was previously a justice of the Texas Supreme Court and the Secretary of State of Texas when Bush was governor. He co-authored the book A Conservative and Compassionate Approach to Immigration Reform: Perspectives from a Former US Attorney General, which will be published in November.
Gormley is the author of two Chautauqua Literary and Scientific Circle selections, 1997’s Archibald Cox: Conscience of a Nation, and 2010’s The Death of American Virtue: Clinton vs. Starr. He has testified in the U.S. Senate three times, and has previously served as president of the Allegheny County Bar Association and mayor of Forest Hills, Pennsylvania.
Gonzales recalled the first time Bush was made aware of the potential to expand NSA surveillance, the weekend after Sept. 11.
“The whole national security team met at Camp David,” he said. “The president asked, what do we need to do to protect America? What capabilities do we have that are not being exercised?” At that point, Gonzales said, then-U.S. attorney general John Ashcroft and the Department of Justice began work on what became the USA Patriot Act. At the same time, NSA surveillance programs were expanded. In October 2001, Gonzales said, Bush authorized “certain collection activities” that had been approved by Ashcroft.
“Winning a war against an enemy like al-Qaida required winning the war of information,” Gonzales said. “Getting as much information as we could — within the limits of the Constitution — that was our charge by President Bush.”
Gormley pointed out that Bush, “From the first day, viewed this as a war, not just as an isolated criminal act.”
“No question about it,” Gonzales said. “It was clear we were going to pull all levers of American power, not just our law enforcement. We would use our military. We would use our intelligence. We would use our economic might to respond to this threat.”
In December 2005, 10 months after Gonzales became U.S. attorney general, The New York Times printed a story revealing the NSA’s secret wiretapping program after a year of holding the story at the Bush administration’s request.
“I was in two meetings with the executive editor of the Times — one in Condi Rice’s office, one over at the Department of Justice — explaining what we were doing and why it was lawful,” he said, recalling being questioned with then-deputy attorney general James Comey by Bill Keller, who served as executive editor of the Times from 2003 to 2011. “The last question he asked me: ‘Do you have any trouble sleeping at night?’ And we both assured him, ‘We do not. We feel very comfortable in the advice that we’re giving.’”
The day after the story ran, Gonzales said, Bush gave a radio address to “reassure the American people that we didn’t have a rogue agency here doing crazy things, that this activity had been authorized by the president, had been reviewed by the attorney general and blessed as lawful.
“He wanted to reassure everyone that we were abiding by the Constitution.”
Gonzales “personally, strongly defended the secret NSA surveillance program,” Gormley said, citing Gonzales’ rationale that it was “vital to the national defense,” and that “the president had inherent authority as commander-in-chief to deal with our enemies in this fashion.”
Gormley testified in the Senate in early 2006 in the judiciary committee hearings to determine if Bush had exceeded his constitutional authority. Gormley took the position that Bush had, citing the Foreign Intelligence Surveillance Act of 1978, which set up a special court to deal with government surveillance programs.
“In my view, the Bush administration had circumvented that,” Gormley said. “Secondly, this secret surveillance not only had excluded Congress, but had left the courts out of the picture, too.”
Gonzales cited a FISA provision that by extension, he argued, applied to the NSA program because it was enacted “during a time of war.”
“Just months after the president authorized this program, we notified the chair and the ranking members, both Republican and Democrats, of the intel committees in the House, intel committees in the Senate, exactly of what we were doing,” Gonzales said. “They were fine with it.” Six months after the authorization, he said, they also notified the chief judge of the FISA court.
The Obama administration has continued the “aggressive” surveillance program, Gormley said, including Verizon phone record metadata, which includes phone numbers called and lengths of phone conversations.
“The collection of the metadata is very important to the government, in terms of piecing together strands of information that may lead them to a particular plot,” Gonzales said. “I believe the government should utilize all of its technologies that it can, to gather up information, so long as it does so within the limits of the Constitution, and so long as there is appropriate oversight by the courts and by the Congress.”
Gonzales said that he is not surprised that Obama has continued the surveillance program. “President Obama has now been educated about how effective these methods are, and he’s been informed by his lawyers, ‘Yes, this can be done in a way that’s consistent with the Constitution.’”
Last weekend, The Washington Post printed a story on an additional cache of NSA data leaked by Edward Snowden, which revealed that much more than skeletal metadata had been collected on average Americans, including intimate sexual and mental health-related content as well as personal photos.
“Normally, you would require some kind of warrant,” Gonzales said. “It may be that, with respect to some of this information, there was a FISA warrant that was issued, and they had the authority from an Article III judge. Always, when you’re talking about massive amounts of collection, there will be incidental information that is collected.”
The Post reported that, amid all of the data, there was some information about terrorist activity, Gormley said. The two agreed, however, that such content collection calls for a warrant.
“There could be exigent circumstances which would force the government to try to get the information as quickly as possible,” Gonzales said. “They may not have time to get a FISA warrant.”
Gormley then turned his attention to the Guantanamo Bay detention center; in particular, several pertinent Supreme Court cases including Hamdi v. Rumsfeld, in which the Court decided in 2004 to recognize the power of the government to detain enemy combatants — including U.S. citizens — but ruled that American detainees must have due process rights, and be able to challenge their enemy combatant status. Yaser Esam Hamdi was a U.S. citizen who was detained at Guantanamo until being transferred to a Naval prison brig in Norfolk, Virginia.
“Guantanamo was not created to house American citizens,” Gonzales said. “It was intended to hold alien enemy combatants.”
In general, Guantanamo has proved a sticky issue in both the Bush and Obama presidencies.
“President Bush had no interest in keeping Guantanamo open. He wanted it closed, but we couldn’t present him a viable alternative. And now President Obama has found himself in the same situation,” Gonzales said.
On the subject of torture, Gormley asked Gonzales about his memo to President Bush that suggested that Article 3 of the Geneva Convention might be outdated and not applicable to the Taliban and al-Qaida on the grounds that they were terrorists, not a government.
“Looking back on it today,” Gormley asked, “Do you think it was a mistake for the Bush administration to take this expansive view of presidential power?”
“No,” Gonzales said. “I said that parts of Geneva were quaint. Certainly with respect to dealing with terrorists. Such as providing scientific equipment, providing commissary privileges, providing a monthly allowance. I felt that those are outdated, those are quaint.”
Gormley asked Gonzales whether torturing suspected terrorists had proven effective.
“Do you think these enhanced interrogation techniques yielded any success?” he said. “Did we capture any terrorists because of this?”
“We’ve had the directors of the CIA, NSA, and the FBI testify under oath that they did,” Gonzales said. “I defer to the experts on this. And obviously, their effectiveness is important in the legal analysis as to whether or not these techniques were constitutional, were lawful.”
With respect to missteps made by the Bush administration, Gormley said, “We know that times of crisis are when we often make mistakes, because we’re afraid.”
Gormley later asked what Gonzales would do differently in Washington.
While he alluded to “specific tactics” that he would have recommended differently to Bush, Gonzales said, “We had to deal with probably the most difficult issues you could possibly think of,” he said. “We did the very best we could to protect you.”
Q: The right to privacy, to some degree, requires trust. Do you think the government is acting out of decreased trust for its people?
Alberto Gonzales: I can’t speak for the administration. If I had to guess, I would say no. That’s not what’s motivation the collection of information. Again, information is currency. The government is interested in getting as much currency as it can. I don’t think that reflects any kind of negative view of the public. And again, I don’t know this president. I don’t know what’s motivating this administration.
Q: What is the new definition of ‘time of war?’ Are we in a perpetual state of war during which government has extraordinary powers?
AG: Even during a cycle — during a time of war — I think the powers of the government change. Sometimes, they may increase a little bit; sometimes, they may decrease a little bit. I don’t know when the war on terror is going to end. We didn’t know when the Cold War was going to end, but it ended. At some point the war on terror, I believe, will end. I do know it hasn’t ended today. And so therefore I believe the measures the government is taking, that I’m aware is taking in order to protect you are still necessary. But we need to be able to insure that those measures are consistent with the Constitution and verified by the other forms of government.
Ken Gormley: And I would add that, because I asked that question when I testified in the Senate all those years ago, when does it end? Because if the government is justifying an extraordinary use of presidential power because we’re in war and this is indefinite, at some point you have to amend the Constitution if you think you’re diminishing the public’s rights in a permanent fashion. I don’t think it can be perpetual.
AG: But let me say this — your representatives have passed an authorization to use military force. That has not been rescinded. That is still in place. They understand that we still place a serious threat in this country.
KG: Laws aren’t necessarily constitutional … I’m saying if it’s suspending power for an indefinite period at some point it might be, yes.
AG: Then it’s the job of you to notify your representatives to rescind the authorization to use military force.
Q: Do you believe that the collection of metadata has prevented or stopped a terrorist attack?
AG: The pure collection is not what’s really important; it’s what you do with that information. And I can’t get into much detail about this because it’s classified, but the simple collection is sort of a starting point. My understanding working in the White House was that this was one of the most valuable collection activities that the government engages in.
KG: I do think it’s important to understand that the collection of that metadata does serve some very important purposes that we have to be careful of wishing away too much, as the recent Washington Post report indicated … We had Attorney General Eric Holder visit Duquesne for our 100th anniversary, and when we were sitting in the green room beforehand [he said that] probably 90 percent of his long days, day after day, is worrying about national security. A dramatic change from an attorney general 20 years ago, and an attorney general who I know real well down in Pittsburgh, Dave Hickton, just told me the same thing. So there’s a lot to worry about there, let’s not mistake about that. And the question is how you do this correctly, and I think the government is struggling to figure that out.
Q: How do you respond to the numerous members of Congress and Senate who claim they did not know about the level of NSA collection?
AG: It is true that from time to time, depending on the program, only certain members of Congress are informed of what the executive branch is doing. For example, in the most secretive programs, perhaps only the chair and ranking members of the intel committees, maybe not even the full intel committee is aware of what the government is doing. And that is OK with Congress. And the concern with that is the more people you tell, the concern you have is that it’s going to leak. Specifically [with the staffers,] you always worried about providing information that gets to the staffers of these members of Congress. So there may be some members who were genuinely not aware of what the government is doing; however, there are also some members who conveniently forget. For example, Senator Rockefeller from West Virginia came to a very important meeting at the White House. We have the White House logs that show he was there, we have other witnesses that say he was there, and yet when news of this meeting broke, his initial reaction was, ‘I had no part of such a meeting.’ So sometimes they forget, sometimes they conveniently forget, that they were made aware of what the government was doing.
Q: What are the moral principles that try to kind guide your decision-making and torture questions, perhaps regardless what the strict confines of the law are?
AG: This is a very good question. From my perspective, as a government lawyer, I think the values of the American people are reflected in the laws passed by your representatives. And I try to the best of my ability to ensure that those laws are followed faithfully, are executed faithfully. Now, do I impose my own values when I implement those laws? Would you be trustful of that? How do you know what my values are? President Bush was very clear about this; he said, ‘Your job is to tell me the law. I was elected by the American people to decide the policy.’ And so I try to be very, very faithful to that charge, to tell him what the law is and not to try to impose my own values. If I was uncomfortable with the application of a particular law based upon my morals, then quite frankly I should resign, quite honestly. I tried to consciously keep that separate.
Q: Should the government be required to inform citizens who have had their data intercepted, and, a second part, provide redress?
AG: Should the government be required to inform you if they’re looking at your files, looking at your records? Perhaps after a period of time that may be appropriate. But there may be reasons why, and this exists in the law involvement context and not just the national security context, that the government would have a period of time to look at something of yours before your notified that, in fact, a search has occurred. So I don’t think I would have a problem if at some point you were informed that your files were looked at by the government.
Q: What price was paid by the American soldiers at Abu Ghraib for their indiscretions and what happened to their commanding officers?
AG: I can’t remember now the ranking commander there now, I think he was Hispanic, and I think he was forced to resign. And I think that there were some court-martials with respect to some of the soldiers who were actually involved in the shenanigans, but I can’t tell you specifically what happened to them. But there were repercussions; they were held accountable for what they did.
Q: As the rules of war must change, don’t the motives of our government also change, as in the issue of terrorism, and the deeper issue of who controls the world’s oil supply?
AG: I’m not sure where all that is going… I can’t speak for this government’s motive, but what I can say is we always have to abide by the Constitution. The American people make choices on election day about the government that they want. You’re stuck with it, for good or for bad, with this government, and so long as they abide by the Constitution, then I guess we can complain about it, but if you don’t like it then I guess we can do something about it on Election Day.
Q: With the rise in domestic violence — school shootings, Boston — is there a line in the sand on spying on citizens?
AG: I’m not sure that I understand the connection … This is a touchy issue, particularly in the state of Tennessee, which I hail from, which really believes in gun rights. Quite frankly, I would not oppose additional background checks. There is a tension. People want to be respectful of people’s privacy, someone may say something, I may say something to Ken that may indicate that I may be going on a rampage at a school. You know, Ken, he’s a friend. He doesn’t want to get me in trouble. We have the right to be weird in this country; we have the right to say all kinds of things in this country. And so we have this respect for privacy, and we have to get over this notion that we shouldn’t convey information that may be important to law enforcement when we’re concerned that a threat may exist. This is a very, very difficult issue, and we have a Second Amendment, of course, that I think we must defend. I think it’s very, very important in this country, but it’s not absolute. And the Supreme Court has said it’s not absolute, and the question is where do you draw the line? And like national security and privacy, that’s a very difficult question to answer.
KG: The Supreme Court has consistently recognized that in school settings there is more flexibility because there is the need to maintain order and safety with our children to have different rights than you have among a population of adults. So I think it’s very important. But let me also say, I’ve done a lot of writing on privacy, the first right of privacy came about over a 100 years ago, and it came about because of the development of technology. Newspapers of general circulation and photographs prompted Louis Brandeis to write an article in the Harvard Law Review. It took about 25 years for the country to catch up with privacy laws. And then the second kind of privacy comes about in the 1920s when this new technology called wire taps were invented. And the first Supreme Court case, Olmstead, said that didn’t amount to a violation of privacy, search and seizure. It took until the late 60s for the Supreme Court to change that. The one thing we know is it takes a long time for laws to catch up to these changes, and this is the perfect type of issue that we really have to think about and get right because we have not sorted out that issue to protect our children and figured out how to allow that to mesh with the right of privacy.
Q: With the decision to treat 9/11, as opposed to a series of criminal acts that were taking place, could you reflect on that decision making process?
AG: That evening, on 9/11, the president decided this was a war and we weren’t going to respond by sending the FBI over and trying to arrest people. We were going to use military is that we necessary. But it wasn’t just the president in the days following 9/11. Congressional leadership, I remember I was in the cabinet room, they were there to give the president whatever he wanted. They said, ‘You need an authorization?’ And he said military force. And one of the questions I’m often asked is what about a Declaration of War? Was there any consideration of that? And there wasn’t. We never asked for it. There wasn’t any discussion about it. I think part of that is because the authorization to use military force would be all that we needed, and also, this was not against a nation. This would have been against a non-nation state, and so things got very complicated. Fairly quickly, your leadership in both the White House and Congress decided this was a war against the United States.
Q: Do you believe that the Internal Revenue Service is misusing data and very private information that they have?
KG: In my case, definitely.
AG: I haven’t turned in my tax returns yet…Yeah, I don’t know what’s going on there but it’s certainly is troubling isn’t it? I mean come on. The lost emails — if you’re a prosecutor doing an investigation and you’ve issued a hold order, which means don’t destroy anything related to the investigation, and all of a sudden you’re told, ‘Hey, all of these emails, we can’t find them.’ Man can you talk about red flags? It’s really queer is what I would say. Very odd.
Q: With the news of particularly the Chinese hacking into various accounts, could the next 9/11 be launched on a digital platform?
AG: Yes, and in fact even during the Bush Administration we began having meetings about cyber warfare and how we would respond. Obviously in the decade since, I’m sure our thinking and our preparation have improved light years. So it is something the government is very, very concerned about, and it’s very likely the next attack is going to extend to some level on the cyber frontier.
Q: To the influence of Vice President Cheney in the making of these decisions, would you like to comment on that?
AG: Vice President Cheney is a very forceful individual, and was unafraid to make his views known. But my view of Dick Cheney is he’s a patriot. He loves America, and he didn’t always get his way. He didn’t always win in the arguments, but every time the president made a decision, the vice president saluted because he understood that he had not been elected by the American people to make these decisions. At the end of the day, all of us who advise the president want our opportunity to give our say, but at the end of the day it’s the president you elected to make those decisions, and Dick Cheney understood that.
Q: Last evening, you spoke a little bit about what it means to you to have these roles and responsibilities in service to your country, and I wonder if you could just say a few words about that as we close today.
AG: What I said yesterday evening was what a privilege it was to serve you in the White House. I think as an American citizen, I don’t think there’s a better privilege than going to work every day at the White House, I mean think about it. And when I think about where I came from, and the opportunities I’ve been given by this country, I love America. I know we have serious challenges here — I know that. But we’re going to get through it. And we will remain a great country. But it requires this kind of discussion, these kinds of debates about what we’re doing. I’m very grateful for the opportunity to be a lawyer and to have been involved in these kinds of decisions. I mean that’s what life is about, isn’t it? To have lived a life worth living. And I hope I have a lot more life to live, but it’s been fun and I thank you for the opportunity.
—Transcribed by Kelsey Husnick