February 6, 2006

What Gonzales will say about the surveillance program.

Today, Attorney General Gonzales will testify before the Senate Judiciary Committee about the Bush administration's surveillance program. He's got a column in the WSJ this morning, which presumably reflects what he will say:
The president, as commander in chief, has asserted his authority to use sophisticated military drones to search for Osama bin Laden, to deploy our armed forces in combat zones, and to kill or capture al Qaeda operatives around the world. No one would dispute that the [The Authorization for Use of Military Force] supports the president in each of these actions.

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies. Any future al Qaeda attacks on the homeland are likely to be carried out, like Sept. 11, by operatives hiding among us. The NSA terrorist surveillance program is a military operation designed to detect them quickly. Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president....

The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants--a fundamental incident of war-- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] . . . in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA.

Lastly, the terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. Like sobriety checkpoints or border searches, this program involves "special needs" beyond routine law enforcement, an exception to the warrant requirement upheld by the Supreme Court as consistent with the Fourth Amendment.
We already know this is the argument. We also know the argument of those who oppose the program. What will be interesting today will be to see how well Gonzales will be able to defend the program under hard questioning and how far the Senators will be willing to go when they know that part of the answer, explicit or insinuated, will inevitably be that if they oppose the program they do not care enough about national security.


David said...

FISA was written in 1978 in a pre- 9/11 world. Terrorists in the U.S. study our laws and found safety in the provisions that did not allow domestic spying.

The leak regarding the NSA wiretaps effectively tipped these people off and weakened our ability to keep track of their communications.

The hearings should hinge on the definition of "reasonably protected" regarding the 4th ammendment. 9/11 should put paid to the canard of a 4th ammendment violation vis a vis reasonableness.

One logical inference from Mr. Gonzales' testimony should point out that Congress might reasonably be expected to review FISA and decide that it needed tweaking. This would make our intelligence gathering more effective and lessen the likelihood of another 9/11 attack.

The outdated FISA did not address the fact that terrorists now live among us and not just in foreign countries. Further, it is reasonable to assume that terrorists living in the U.S. may be expected to make international calls knowing they were immune under FISA from being monitored.

Ergo, the terrorists are smarter and more clever than most of our Congress.

ALH ipinions said...

I think this is much ado about nothing. Bush insists that he has authority to do what he's doing. Democrats insists he does not; but they hasten to add, rather plaintively, that if only he'd ask them for the authority to do what he's doing, they would be eager to oblige.

(But if what Bush is doing is so reprehensible (illegal), why would Democrats be so willing to sanction it?)

Alas, the obvious and simple resolution to this national security debate seems lost in terminal partisanship. And, there's bound to be more political posturing and bloviation of predictable talking points during these hearings than we were treated to during the recent Alito hearings....

Bruce Hayden said...

I think that Gonzales is probably the best Administration person for this. Whenever I have seen him before, he has come across as very slick and articulate. I am sure that they are thanking John Ashcroft now for retiring.

I think a lot of the Democratic opposition to this program is caught between a rock and an unyielding object. A lot of their base is screaming for Administration scalps, but they know that if they are seen as responsible for shutting down this program, and then there is another 9/11 type terrorist attack on our soil, they will be held accountable by enough of the population that they can expect to stay out of power for at least the next generation.

And, thus I think, the tactics of screaming about civil liberties, while not really doing that much to stop the program.

Bennett said...


You assert that FISA was outdated, and make the "pre-9/11 mindset" argument. But such generalities are distracting from the specific facts. How was FISA inadequate? How was it outdated? How indeed should it have looked in a post-9/11 world? The administration eschewed changes to FISA, and Bush then stated on the campaign trail that court orders were being sought for any and all domestic surveillance.

Further, it is reasonable to assume that terrorists living in the U.S. may be expected to make international calls knowing they were immune under FISA from being monitored.

How's that again? I am aghast at how widely this basic assertion is made without a specific basis. Questions usually prompt a retreat into generalities regarding the menace of terrorism. Naturally, it sounds like this is going to be Gonazales' touchstone in the hearings.

DaveG said...

Plenty of good, honest discussion here. It will be interesting to compare & contrast with the "quality" of discourse this topic will receive in the Senate Judiary Committee, home of the Alito Grill.

I'm hoping for another Kennedy red-faced rant, myself, his renowned concern for common citizens being what it is and all.

ChrisO said...

"The leak regarding the NSA wiretaps effectively tipped these people off and weakened our ability to keep track of their communications."

Another assertion that is being made repeatedly with absolutely no evidence to back it up. Since it is now being admitted that the NSA spying effort produced almost no usable information, please tell me how its exposure helped the terrorits?

And while the Administration would love to keep painting this as a Republican versus Democrat issue, I think Bob Barr, Grover Norquist and a host of other stalwart Republicans would beg to differ.

Sloanasaurus said...

That is an interesting point regarding another terrorist attack. Politically, the revelation about this program will only intensify paertisanship if we are attacked again. Republicans will blame the left for the attack because of the security leaks in the program. Democrats would be wise to let the program go on.

Semanticleo said...

Already the tactics and talking points are in place.

The ever courageous Glenn Reynolds
has linked to the brief Hugh Hewitt
exhortation recommending that the
Senate Leadership move to halt the
NSA program and watch the fun as
Dems have to vote on this silly

Why don't they have the Senate vote
on getting out of Iraq NOW!? (as HR
did following Murtha's initial

It's just not right that we are
having a debate about the credibility and legitimacy of the
Bush administrations pleas to
"trust us, we value the 4th amendment and are following FISA laws. Please don't challenge our
integrity. It helps the enemy";

No, it's better if we stifle the
debate with silly sound bytes we
can exploit.

Serenity said...

I think that both democrats and republican opponents are having selective amnesia when it comes to this. Bush asserted in a press conference that "congress was brief over a dozen times"

If it's so illegal; then why haven't we heard the huffing and puffing (and in this case, bluffing), before?

As for why FISA is lacking, I believe that was also an issue that Bush addressed in his conference with the press, stating that sometimes court orders take up to 6 months to get-- beaucracy, here. We're talking about 3 minute phone conversations.

As for the lack of useful information gleaned; just who's testifying to that? The Washington Post? With what, anonymous sources? I think it's a bit premature to determine that at all. Considering that sucesses may have been, and are continuing to be, cloaked from the press for the obvious reasons of method and source protection.

Stiles said...

Wow. For someone with a reputation for being polished, I was astounded that Attorney General Gonzalez essentially acknowledged that programs are ongoing that involve warrantless domestic-domestic tapping.

I'm willing to chalk up one "Sir, the program that I'm talking about today, yes, is limited
to international calls." to error, but how many times did he use that formulation today? And in response to softball questions from friendlies like Sen. Sessions!

I think there may be partisan differences in tone, but I think after today that the Congressional hearings will be very bi-partisan in substance.

I also think that Sen. Graham made an important observation that the Administration's hyper-expansive interpretation of the AUMF, if persisting, may make it more difficult to secure additional resolutions in the future.

ChrisO said...

"As for why FISA is lacking, I believe that was also an issue that Bush addressed in his conference with the press, stating that sometimes court orders take up to 6 months to get"

I don't know why this point fails to sink in. The government has up to three days after wiretapping to get a warrant. And if FISA is lacking, is it really the appropriate response for the President to just say "this law doesn't work for me, so I'll just ignore it?" Is there any record of Bush approaching Congress to say "We need to amend FISA?" No, and I venture the reason is that no constitionally acceptable amendment to FISA would allow the kind of surveillance the Administration was conducting.

As for the fact that the story in the Washington Post stating that the information gleaned from the wiretaps was virtually useless is based on anonymous sources, that point is well taken. However, Bush saying that "Congress has been briefed" is an even less reliable story. I mean, consider the source. Bush hasn't exactly established a track record for honesty.

Anonymous said...

Alberto: President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance on a far broader scale.

What's amazes me is that not only are these guys incompetent, but all of you folks fall over yourselves trying to best rationalize and defend these liars.

The Sloanbot I can understand, he was programmed that way. But the rest of you shills? Hayden the patently absurd lawyer that says that Gonzales is the bestest of the best?

Praise Jebus!

wildaboutharrie said...

I'm glad Feinstein called Hatch on the whole "Clinton did it" line.

Also, I can't stand Biden, but I laughed when he said he hoped all the people caught aiding al Qaeda had been arrested.

I hope Specter is aggressive with his roster of witnesses.

Semanticleo said...

The nasty little drama continues.

The attempt to control the Senate
committee may even be affecting
McCain who published a nasty open
letter to Barak Obama, who is more
than perplexed by the tone and
content of same.

The Exalted said...

ah, the talking points

terrorists study our laws . . .right, i'm sure the 9/11 hijackers who spent their nights in strip clubs spent their days in law libraries.

and, even if they did "study our laws," what would they find? that, given probable cause, their communications could be tapped!

and, after abu gharaib, i'm sure it would be evident to any terrorist that this administration will not let mere laws impede their war.

david's talking point bashed down. next?

Drew said...

As someone who frequently defends the president, I must admit a feeling of uneasiness with the idea that our government can listen in on its citizens without the checks and balances implored by the constitution. Whether the surveillance program turns out to be legal or not (I will leave that to you lawyer types), I would feel more comfortable knowing that the intercepted calls were authorized by an independent authority such as the FISA courts. It seems that the bureaucratic problem could be fixed in other ways.

That being said, we do need to be listening to al-Qaeda communications within the United States.

W said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.