[JURIST] US Attorney General Alberto Gonzales [official profile] on Tuesday downplayed criticism [speech transcript] of the controversial domestic surveillance program [JURIST news archive] administered by the National Security Agency [official website], saying that reports of the program have been misleading. Echoing comments by President George Bush [transcript; JURIST report] Monday that the program should not be referred to as "domestic surveillance" but instead as a "terrorist surveillance program," Gonzales strongly defended the program's legality, both under the president's powers as commander-in chief, but also under the 2001 Congressional resolution [PDF text] authorizing military force against al Qaeda:

The Resolution means that the Presidents authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice Jackson's concurring opinion in the Youngstown Steel Seizure case, the President's authority falls within Category One, and is at its highest. He is acting "pursuant to an express or implied authorization of Congress," and the President's authority "includes all that he possesses in his own right [under the Constitution] plus all that Congress can" confer on him.

In 2004, the Supreme Court considered the scope of the Force Resolution in the Hamdi case. There, the question was whether the President had the authority to detain an American citizen as an enemy combatant for the duration of the hostilities.

In that case, the Supreme Court confirmed that the expansive language of the Resolution -"all necessary and appropriate force"-ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.