Tuesday, February 07, 2006

Gonzales Highlights and Lowlights

If you want to know what it went like yesterday when Attorney General Alberto Gonzales went before the Senate Judiciary Committee to defend the legality of the Bush administration’s domestic spying program, I can sum it up with a hypothetical scenario.

Let’s say my little boy desperately wants a bag of Skittles. (This not an uncommon request for him.) My wife, being the healthy-food Mom that she is, counters with an offer of a bunch of broccoli and my son steals a bag of candy from our corner store – and is caught.
Store Owner: You son’s a thief.

Bob’s Wife: No, he’s not.

Store Owner: But he stole a bag of candy.

Bob’s Wife: He’s eight years old and loves candy. That’s gives him a reason.

Store Owner: But it’s illegal.

Bob’s Wife: He doesn’t think it’s illegal if you really want Skittles and don’t like the law against stealing candy. So it’s OK.

That pretty much gives you the gist of Gonzales’s entire testimony yesterday. The main reason that President Bush had thousands of Americans spied on without the required warrants? He’s the president and he wanted to. Oh, and he didn’t like the prevailing law either.

Which is kind of strange because a provision in the USA Patriot Act allowed for warrantless spying as long as such documentation is obtained within 72 of doing the snooping. And, with that law, Bush was often quoted as saying that his team was now equipped with all the tools necessary to fight terrorism.

The hearings started off with a bang when Judiciary Committee Chairman Arlen Specter (R-PA) determined that Gonzales did not need to be sworn in – which certainly makes lying much more convenient – and was immediately jumped by Democrats. In addition to formally challenging Specter’s ruling, Senator Russ Feingold (D-WI) demanded a roll call vote on his appeal and, when Specter voted by proxy for one Republican committee member, Feingold demanded to see proof of that proxy.

“This is really not a very good way to begin this hearing,” whined Specter.

Crooks and Liars has the video of Feingold and Senator Patrick Leahy (D-VT), the ranking Democrat on the committee, strongly raising the issue of Gonzales not being under oath and forcing it to a vote. It’s worth a look.

Eventually, having the majority on the committee, the Republicans were able to keep Gonzales from being sworn in.

Senator Dianne Feinstein (D-CA), breaking from her role as more of a centrist, went right after Gonzales and, in essence, publicly called the president on lying about the issue in 2004. Here’s what she said:
“And so it comes with huge shock, as Senator Leahy said, that the president of the United States in Buffalo, New York, in 2004, would say, and I quote, ‘Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.’

“Mr. Attorney General, in light of what you and the president have said in the past month, this statement appears to be false. Do you agree?”
Now get a load of Gonzales’s hilarious reply.
“No, I don't, Senator. In fact, I take great issue with your suggestion that somehow the president of the United States was not being totally forthcoming with the American people.”
He’s such a kidder. Isn’t that a little like Charles Manson’s lawyers taking “great issue” with their client being called a crazed murderer?

Of course, Gonzales never really did answer that question.

“You have advanced what I think is a radical legal theory here today,” Feinstein continued. “The theory compels the conclusion that the president's power to defend the nation is unchecked by law, that he acts alone and according to his own discretion, and that the Congress's role, at best, is advisory.”

Gonzales then went on to give his secondary rationale for Bush’s actions saying that the “authorization to use military force is the kind of congressional action that the FISA law anticipated” and saying that it was implied that Bush could spy on Americans at will.

Feinstein then truly cuts to the chase by spelling out the only two “”escape hatches” in the Foreign Intelligence Surveillance Act (FISA) that would allow a president to proceed legally without a warrant.
“One is 15 days after a declaration of war and the second is the 72-hour provision, which was actually amended by us in the Patriot Act from a lower number to 72 hours. Those are the only two escape hatches in FISA. What in FISA specifically, then, allows you to conduct electronic surveillance within America, on Americans?
Watch Gonzales’s response and then watch as the nation’s chief law enforcement officer gets schooled by Feinstein, who is not even a lawyer.
Gonzales: I believe that it's Section 109, which talks about persons not engaged in electronic surveillance under cover of law except as authorized by statute. And I may not have it exactly right.

We believe that that is the provision in the statute which allows us to rely upon the authorization to use military force.

Now, you may say, "Well, that -- I disagree with that construction." That may be so. There may be other constructions that may be fairly possible. We believe this is a fairly possible reading of FISA. And as the Supreme Court has said under the canon of constitutional avoidance, if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that must be applied.

And if you reject our interpretation of FISA, Senator, then you have a situation where you've got an act of Congress intention with the president's constitutional authority as commander in chief. And the Supreme Court has said when that happens you go with another interpretation if it's a fair application. And that's what we've done here.

Feinstein: Could you check your citation? I just read 109 and I don't believe it says that, and we'll talk about that after lunch.

Gonzales: Yes, ma'am.
Feingold gave a powerful opening statement that went right after the right-wing spin that Democrats have a “pre-9/11 view of the world”:
But the problem here is that what the administration has said is that when it comes to national security, the problem is that the Democrats have a pre-9/11 view of the world.

Well, let me tell you what I think the problem is. The real problem is that the president seems to have a pre-1776 view of the world. That's the problem here.

All of us are committed to defeating the terrorists who threaten our country, Mr. Attorney General. It is, without a doubt, our top priority. In fact, I just want to read again what you said.

As the president has said, if you are talking with Al Qaeda, we want to know what you're saying. Absolutely right. No one on this committee, I think no one in this body, believes anything other than that, and I want to state it as firmly as I can.

But I believe that we can and must do that without violating the Constitution or jeopardizing the freedoms on which this country was founded.

Our forefathers fought a revolution -- a revolution -- to be free from rulers who put themselves above the law. And I got to say, Mr. Chairman, I think this administration has been violating the law and is misleading the American people to try to justify it.
Feingold ended his questioning with a direct slap at the evasive Gonzales saying “Mr. Chairman, I think the witness has taken mincing words to a new high.”

Patrick Leahy strongly suggested that the only reason the administration is questioning the adequacy of the FISA regulations is that they got caught with their hands in the cookie jar.

“The administration has not suggested to Congress, the American people that FISA was inadequate, outmoded or irrelevant. You never did that until the press caught you violating the statute with this secret wiretapping of Americans without warrants,” said Leahy.

Leahy continues:
“In fact, in 2004, two years after you authorized the secret warrantless wiretapping program -- and this is a tape we're told we can't show -- the president said, quote, "Any time you hear the United States government talking about wiretap, a wiretap requires a court order. Nothing has changed. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

“That was when he was running for re-election. Today we know, at the very least, that statement was misleading.”
Leahy then grills Gonzales on the exact legal language that would allow the president to spy on Americans without a warrant.
Leahy: Can you show us in the authorization for use of military force what is the specific language you say that's authorizing wiretapping of Americans without a warrant?

Gonzales: Sir, there is no specific language, but neither is there specific language to detain American citizens. And the Supreme Court said that the words "all necessary and appropriate force" means all activities fundamentally incident to waging war.

Leahy: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.

Gonzales: There is all kinds of wild speculation about...

Leahy: Did it authorize it?

Specter: Let him finish.

Gonzales: There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about...

Leahy: Mr. Attorney General, you're not answering my question. I'm not asking you what the president authorized. Does this law -- you're the chief law enforcement officer of the country -- does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?

Gonzales: Senator, I think that, again, that is not what is going on here. We're only focused on international communications where one part of the communication is Al Qaeda. That's what this program is all about.

Leahy: : You haven't answered my question .
And, despite the repeated White House spin that only people talking to al Qaeda are being targeted for eavesdropping, Gonzales doesn’t seem to be able to attest to that when asked directly by Senator Joe Biden (D-DE).
Biden: Can you assure us, General, that you are fully, totally informed and confident that you know the absolute detail with which this program is being conducted? Can you assure us you personally can assure us that no one is being eavesdropped upon in the United States other than someone who has a communication that is emanating from foreign soil by a suspected terrorist, Al Qaeda or otherwise?

Gonzales: Sir, I can't give you absolutely assurance of the kind that you've asked for.
And that pretty much sums up the day. Said Leahy, wrapping it up nicely: “Mr. Attorney General, in America, our America, nobody is above the law, not even the president of the United States.”