Topic: The Law
Question Time: The Attorney General Smiles
Each week should start off with a dramatic political event that sweeps all the other news off the table. Monday, February 6, 2006, we got that - a Watergate-style senate hearing with big issues, angry words, evasions, posturing - and, after the hearings, more of the same as the participants popped up on all the cable new talks shows with refinements of the big issues, angry words, evasions and posturing. The New York Times summary opened with this - "Attorney General Alberto R. Gonzales told skeptical senators today that the Bush administration's domestic eavesdropping program is legal, constitutional and vital to national security in a time of terrorism."
They were skeptical (some of them, even some key Republicans). It didn't go that well, but it was a fine day for political junkies and folks who think about where this country is headed - full of heated exchanges about the constitution and the law and who has the power to decide what they mean, and who doesn't. These are core issues, and the event made up for the dreary big story from the previous evening, the Pittsburgh Steelers winning Super Bowl XL in Detroit. (Even those of us born and raised in Pittsburgh were forced to admit it was a sloppy game by two teams playing badly, with bad calls from the officials - not an XL game but more of a S.)
Of course there was other Monday news. The Cartoon Wars became even more intense and deadly, as the BBC reported Four Killed In Cartoon Protests. Yes, that's a terrible headline with a badly placed modifier, evoking the film "Who Framed Rodger Rabbit" and all that careening through Toontown - but this is serious stuff.
See Christopher Hitchens here and his "case for mocking religion" -
Hitchens, addressing all the threats of violence for what was published, argues civil society means that "free expression trumps the emotions of anyone to whom free expression might be inconvenient," and says it's "depressing to have to restate these obvious precepts," and of our government's tut-tut reaction says it's "positively outrageous that the administration should have discarded them at the very first sign of a fight."
On the other hand, a long item from Tristero at Hullabaloo argues this about the cartoons as a "statement" about the absolute rightness of free speech -
And on and on it goes.
There was other news - Bush Proposes $2.77 Trillion Budget, with the subhead "More money sought for defense, cuts in most other areas..." That's the plan. Big boosts for defense spending - and cutbacks for education and Medicare and programs for the poor and for the Centers for Disease Control in Atlanta and for all the other stuff for the unlucky and "irresponsible." And Bush insists that current and upcoming tax cuts for the very wealthy be made permanent. The consensus seems this one will be hard to get through congress. Some of the unlucky, and many who earn less than five hundred grand a year, actually vote - and this may look, to them, like a plan somewhere between mean-spirited wrong-headed nastiness and sheer madness. Congressmen and some Senators face the voters late in the year, and even with clever gerrymandering and electronic voting machines they sense potential trouble. Will this fly? In the House, Tom DeLay is no longer around to twist arms, and, in the Senate, Bill Frist lost his mojo a long time ago. It's a story in the making.
And Iran is still there, seemingly on its way to building nuclear weapons. The International Atomic Energy Agency (IAEA) late the week before referred Iran to UN Security Commission for some sort of action. Iran tossed them out, shut off all monitoring, dropped out of the nonproliferation treaties, and threatened sanctions, and we said diplomacy was necessary but suggested military action was possible. (Sounds familiar.) Wesley Clark explains here what the military action would look like - over four thousand precision bombings as all the sites are so scattered, and, where the sites are co-located with hospitals and schools, the insertion of special-ops teams on the ground for even more precision. No invasion. Norman Solomon here explains what happens next - regional war or worse - and says, given who's in charge here, and there, that'll happen. It's another story in the making.
The immediate story was the Senate hearing.
Of course, to set the stage properly for that, one should note this from Newsweek hit the wires over the weekend before Monday's print distribution, just a little something from the administration, specifically the Justice Department -
Ah, theoretical contingencies.
You see, the Justice Department and the administration claims the president has the authority to declare citizens "enemy combatants" with no appeal of that declaration (you can't claim a mistake has been made), to hold them without charges or council for as long as the Justice Department and the administration deem necessary, and to hold them with no communication with anyone, and never have a trial or hearing of any kind - and neither the courts or congress can object, as this in one of the plenary powers a president has in time of war, or in this case, in time of what everyone seems to think is pretty much the same as a war, given that "authorization of force" to deal with terrorism almost five years ago. Close enough. Now on the president's word alone, citizens can be selected and killed, as due process would not apply? So says the Justice Department's acting head of the Office of Legal Counsel. Theoretically.
See this - "...lettres de cachet were letters signed by the king of France, countersigned by one of his ministers, and closed with the royal seal, or cachet. They contained orders directly from the king, often to enforce arbitrary actions and judgments that could not be appealed." It's a fourteenth century French thing, but really made useful by Louis XVI - but then they had that revolution. But then Napoleon brought them back. Then on April 3, 1814, they were gone again. So was he.
They're back - and you didn't think these guys in Washington liked anything French.
Also to set the stage, the day before the Gonzales hearing on the NSA program, Senate Judiciary Committee chairman Arlen Specter, the Republican from Pennsylania set to run the hearing went wild (sort of), saying the administration's legal justifications for its warrantless spying program have been "strained and unrealistic" - so far. And he opened the hearing (see here) with the idea the administration may have violated federal law's "forceful and blanket prohibition against any electronic surveillance without a court order."
Well, CNN covered the hearing fairly - who said what - and Emily Bazelon offers Cowardly Lions: Congress talks tough to Gonzales - and then turns and runs.
The hearing was odd.
Gonzales said what everyone expected - congress cannot override a president's battlefield decisions, as the constitution says the president is the commander-in-chief of the armed forces, so what he did was legal, as all the world is a battlefield now, even Akron and Tulsa one assumes, and anyway, congress told him to act as commander-in-chief of the armed forces when they overwhelmingly passed that "authorization of force" thing a few years back. So it's all "legal and reasonable." That was the whole of what Gonzales had to say - and no, congress could not have access to the administration's internal legal findings that this was how things were.
Case closed? Hardly.
Gonzales got hammered. No, the "authorization of force" in no way posited all the world is a battlefield now, including here at home - the administration asked for that and it was denied. Gonzales smiled. Everyone knows (he assumes) all the world is a battlefield now, including here at home.
Gonzales was asked why not use the existing law and get the warrants. He smiled - takes too much time, and not relevant anyway.
Why not ask for a change in the law if the NSA was using new techniques not covered in the 1978 law as amended so many times. He smiled. The law was not applicable here.
Why not inform congress of what was up, as required by law? He smiled. The law was not applicable here, and they really did inform a few people - not the ones listed in the law, but close enough.
Senator Leary - "No man is above the Law." Gonzales smiled - as that obviously depends on how you read the constitution.
Senator Kennedy said that Democrats and Republicans are "united in their desire to keep Americans safe" but suggested if it turns out that this warrantless spying program is ruled illegal - if a court is forced to throw out evidence against an accused terrorist because it was obtained unlawfully - then wouldn't we all be less safe? The question was blunt - "What if you're wrong?" Kennedy didn't mention it but two defendants actually charged with crimes last week filed motions for suppression of evidence based on the claim that the evidence was obtained illegally by the NSA sweeps. Gonzales smiled he said the administration wasn't wrong.
Judiciary Committee chairman Arlen Specter - "There are a lot of people who think you're wrong. What do you have to lose if you're right?"
Gonzales - "Obviously we would consider and are always considering methods of fighting the war effectively against al Qaeda."
That's an answer?
Senator Russ Feingold had another axe to grind. Last year during Gonzales' confirmation hearing he asked Gonzales, directly, whether Gonzales believed that the president has the power "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales shrugged off the question then as "hypothetical" - but obviously Gonzales knew that was just what was going on at the time. Russ was not pleased - so he asked about that
Gonzales said, now, that of course the president had authorized "warrantless wiretaps" - but since he hadn't done anything "in violation of the criminal and foreign intelligence surveillance statutes of this country," asking about the power to engage in such a violation had been in fact a "hypothetical" question back then - and he told the truth then, and he was telling it now.
The guy is good.
Next was Lindsey Graham, Republican, South Carolina - if the administration thought congress somehow or other "implicitly" authorized warrantless intelligence work when it adopted that use-of-force authorization way back when, next time you guys ask for one you may not get it, as that was not what congress authorized - and anyway, where are the boundaries here - does the Constitution also allow the president to ignore that new McCain law that prohibits the United States from engaging in torture? Gonzales smiled - torture wasn't the topic, was it?
And on it went. The full transcript is at the Washington Post site, in two parts, here and here, if you really need more detail.
The best part needs to been seen, however. That would be here (Windows Media Player) and here (QuickTime). As things were getting underway, Senator Feingold said he wanted Gonzales be put under oath. Senate Judiciary Committee chairman, good Arlen Specter, said it wan't necessary. You could trust the guy. Feingold insisted. Gonzales said he had no problem testifying under oath. Specter no oath, period - and it's not the decision of the witness - as HE was chairman. Feingold forced a vote, and lost - all Democrats voting for the testimony to be under oath, and all Republicans voting against that idea. The Democrats lost - they are the minority party, after all.
This was somewhat academic. False testimony to congress is against the law - very bad - but then, it's not the same as perjury (lying under oath) - which is really, really bad.
Specter - "This is really not a very good way to begin this hearing." No kidding.
The whole event might strike some, on one side of the national debate, as absurd, and on the other side, more than a tad ominous.
From that other side, note this from Digby at Hullabaloo (go there for links to all the supporting documentation) -
What's with the Louis XVI stuff? Is everyone seeing that now? But he has a point.
The there is this - you letthe firemen in when the house is burning but that's not what we have here now -
This writer isn't buying it any longer. The question is, will more and more people not buy into the-sky-is-falling don't-think run presentation of the world right now? We'll see. There will be another day of hearings in a week or so. We'll see who's as unflappable as Gonzales.
As for Gonzales, he may be facing a post-post 9/11 world, not the world of 1784 in Versailles. This was a hard sell. If so, he should be glad he wasn't under oath.