February 7, 2006
The Legal Arguments
In Limelight at Wiretap Hearing: 2 Laws, but Which Should Rule?
By ADAM LIPTAK
It is the sort of problem that judges confront every day. One law forbids a
certain activity. The other may allow it. Which one counts?
Attorney General Alberto R. Gonzales made the case to the Senate Judiciary
Committee yesterday that two potentially contradictory Congressional actions
— one a 1978 law forbidding domestic surveillance without a court's
permission, the other a 2001 resolution giving the president authority to
use force to combat Al Qaeda — together mean that the executive branch is
free to decide on its own to spy on communications between people in the
United States and those abroad.
Under the ordinary rules that courts use to harmonize potentially
conflicting laws, the more specific one typically governs. Here, that would
seem to be the 1978 law, the Foreign Intelligence Surveillance Act, or FISA,
which created an elaborate legal scheme to regulate wiretaps, as well as a
secret court that promptly hears warrant applications.
If a later law means to override or amend an earlier one, moreover, courts
generally require it to say so specifically. The 2001 resolution 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 Sept. 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States."
Whether the 2001 resolution created an exception to the 1978 law depends on
whether "necessary and appropriate force" includes surveillance of the
enemy. Neither detentions nor surveillance was mentioned in the resolution.
The Bush administration says both are natural incidents of the use of force
In 2004, the Supreme Court ruled that the resolution encompassed the
detention of an American citizen captured on a foreign battlefield in a
conventional war. But critics say spying on communications involving people
in the United States is very different from detaining an enemy combatant.
Last month the Supreme Court confronted a broadly similar situation. The
administration argued that a general federal statute, the Controlled
Substances Act, gave the attorney general authority to override a specific
Oregon law, the Death With Dignity Act. The court rejected that argument,
saying the federal law did not specifically grant such authority. Congress,
the court said, "does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions — it does not, one might say,
hide elephants in mouse holes."
Under that reasoning, the authorization for force to head off terrorism may
be too general to override the 1978 law.
Mr. Gonzales acknowledged yesterday that at least some members of Congress
did not realize they were voting for a surveillance program when they voted
for the force resolution.
"But we are a nation governed by written laws," Mr. Gonzales said, "not the
unwritten intentions of individuals. What matters is the plain meaning of
the statute passed by Congress and signed by the president. And in this
case, those plain words could not be clearer."
The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont,
"This authorization is not a wiretap statute," Mr. Leahy said. "We know what
the wiretap statute looks like. This is not it."
Senator Lindsey Graham, Republican of South Carolina, said he "never
envisioned that I was giving to this president or any other president the
ability to go around FISA carte blanche."
"In all honesty," Mr. Graham told Mr. Gonzales, "this
statutory-force-resolution argument that you're making is very dangerous in
terms of its application for the future." An expansive reading of the 2001
resolution, Mr. Graham said, may make it "harder for the next president to
get a force resolution if we take this too far."
Mr. Gonzales maintained yesterday that the two enactments "complement each
The committee's chairman, Senator Arlen Specter, Republican of Pennsylvania,
responded, "Well, that just defies logic and plain English."
Mr. Gonzales conceded that his was not the only possible way to harmonize
the two Congressional actions. But the administration's reading is, Mr.
Gonzales said, "fairly possible." Given that, he continued, the Constitution
requires deference to the executive branch's interpretation under a doctrine
known as constitutional avoidance, which counsels against reading statutes
in a way that creates constitutional conflict when another reasonable
interpretation is available.
In a letter to Congress last week, a group of 14 constitutional scholars and
former government officials said that "FISA is not ambiguous on this
subject, and therefore the constitutional avoidance doctrine does not
The administration has a fallback position, but it was not one Mr. Gonzales
discussed much yesterday. Even if the force authorization did nothing to
alter the restrictions set out in the 1978 law, he said, the president's
constitutional authority as commander in chief may by itself allow the
"Fortunately," Mr. Gonzales continued, "we need not address that difficult
The senators questioning Mr. Gonzales often appeared frustrated and
skeptical. That was due in some degree to the fact that many of them had
taken part in enacting at least one of the two measures. But it was also a
reaction to Mr. Gonzales's apparent position that neither Congress nor the
courts had a role to play in clarifying any ambiguity.
Mr. Specter urged the administration to present the surveillance program to
the FISA court "lock, stock and barrel."
"Let them see the whole thing," Mr. Specter said, "and let them pass
Mr. Gonzales did not provide a direct answer. He did say that in the case of
some individual warrant applications, the administration did not believe it
could move quickly enough to satisfy the 1978 law, though he acknowledged
that the law allows applications to be filed up to 72 hours after the
surveillance has started.
Mr. Gonzales also clarified again a statement he made on Dec. 19, a few days
after the spying program was disclosed by The New York Times. At the time,
he said the administration had not sought an amendment to the 1978 law
because "certain members of Congress" had "advised that that would be
difficult, if not impossible." Since then Mr. Gonzales has said the real
problem is that such legislation could not be enacted without compromising