Addressing some of the most often repeated criticisms of the wiretapping activities, Gonzales said a foreign intelligence surveillance law that Congress enacted in 1978 was "not intended to be the last word on these critical issues."
"The legislative history of this provision makes it clear that Congress elected not to decide how surveillance might need to be conducted in the event of a particular armed conflict," he said.
Rather, he said, the authors of the 1978 Foreign Intelligence Surveillance Act anticipated that Congress would have to revisit the issue again during future wars. He added that is exactly what they did when Congress enacted its resolution authorizing the president to use force against the plotters of the Sept. 11, 2001 attacks.
Some Republicans, Democrats, law professors and the Congressional Research Service have said the president's secret 2002 order, which authorizes the National Security Agency to conduct warrantless domestic wiretaps, violate the 1978 law. Sen. Patrick Leahy, D-Vt., ranking member on the Judiciary Committee, on Friday introduced a resolution clarifying that Congress did not authorize the wiretaps when it enacted its 2001 resolution.
Gonzales further argued that the 1978 law's provision allowing investigators to conduct warrantless wiretapping for 72 hours in emergency situations is not sufficient for the administration's "detect and prevent" counterterrorism efforts. Those kinds of wiretaps still face a bureaucratic approval process involving many layers of authorization after they are approved, he said.
"Consistent with the wartime intelligence nature of this program, the optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information," he said. "They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of delay, and there would be critical holes in our early warning system."
Gonzales further justified the administration's views on the president's authority to authorize the wiretaps by pointing to testimony from a Justice official under the Clinton administration.
That official said in 1994 "that the president has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment," Gonzales said.
Gonzales' speech, delivered at Georgetown Law School on Tuesday, was met with both protests and standing ovations from students. Some students stood in the auditorium with their backs facing the attorney general in silent protest.