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The old observer
"You're doin' a heckuva job, Gonzales!"

by Kathryn (Kate) Joanne Dixon © 2/7/06

The waves of deceit poured out over the levees of the law yesterday.  Attorney General Alberto Gonzales, a man has kept his middle name a secret, tried to explain the legality of the NSA's surveillance program as Senators fired questions at him during a hearing before the Senate Judiciary Committee.  He displayed the wisdom of FEMA Director Mike Brown when he put his finger to the wind and finally felt the hurricane when it was too late.

Gonzales must realize that the President and all those who obeyed his order to engage in surveillance without first seeking an order from the FISA court committed a crime.  Therefore his appearing before the Senate with anything other than a mea culpa was an explication of deceit -- thus his calm smile and near snicker as he mashed words for seven hours. Gonzales's job was to justify the President's actions to the Senate and public in order to avoid any such prosecutions or impeachment proceedings. 

Gonzales just could not carry it off.  He was no Ollie North pounding his chest and medals with patriotic exclamations and moans as he defending the illegal Iran/Contra program which defied the Boland Amendment. Gonzales just couldn't stop questions dead.  He couldn't wrap them in enough Stars and Stripes. His answers were just fertile fields for new and expanded questions.

First of all, Gonzales didn't define what the NSA surveillance "program" is -- its nature, extent, the number of persons who are subject to its surveillance capacities.  He claimed  he could not do so because "operations" were classified.

GONZALES: The president has described the terrorist surveillance program in response to certain leaks, and my discussion in this open forum must be limited to those facts the president has publicly confirmed: nothing more.

Heckuva job, Gonzales!  The public will now speculate whether the NSA program consists of extensive data mining, key word searches, social searches and all the various program Admiral Poindexter such as Total Information Awareness that was  cooked up and then allegedly abandoned early in the Bush administration.

Apparently, all the public will know about the program is what authors like James Risen write in their books based on their anonymous sources.  And Gonzales shall prosecute such people, if he can, for "leaking".

SESSIONS: Well, let me just conclude with this point. I think the system was working in that way. We were conducting a highly classified important operation that had the ability to prevent other people from being killed, as Ms. Burlingame's brother was killed, and several thousand others, on 9/11.

I believe that CIA Director Porter Goss recently in his statement that the revealing of this program resulted in severe damage to our intelligence capabilities is important to note.

And I would just like to follow up on Senator Cornyn's questions, General Gonzales, and ask you to assure us that you will investigate this matter and, if people are found to have violated a law, that the Department of Justice will prosecute those cases when they revealed this highly secret, highly important program?

GONZALES: Of course, we are going to investigate it. And we will make the appropriate decisions regarding a subsequent prosecution.

SESSIONS: Will you prosecute if it's appropriate?

GONZALES: We will prosecute if it's appropriate, yes sir.

SESSIONS: Thank you.

Second,  Gonzales did not deny that that there are surveillance programs other than the NSA program which was the topic of the Senate hearing.  He suggested by his too careful cheeky answers, that such programs may exist.

FEINGOLD: Has the president taken or authorized any other actions that would be illegal if not permitted by his constitutional powers or the authorization to use military force?

GONZALES: You mean in direct contradiction of a statute, and relying upon his commander in chief authority?

FEINGOLD: Has he taken any other action that would be illegal...

GONZALES: Not to my knowledge, Senator.

FEINGOLD: In other words, are there other actions under the use of military force for Afghanistan resolution that, without the inherent power, would not be permitted because of the FISA statute? Are there any other programs like that?

GONZALES: Well, I guess what I'd like to do, Senator, is I want to be careful about answering your question. I obviously cannot talk about operational matters that are not before this committee today. And I don't want to leave you with the wrong impression.

And so I would like to get back to you with an answer to that question.

And Senator Jeff Sessions, a big-time supporter of Bush and Gonzales in the hearings, let it slip that there is a domestic spying program:

SESSIONS: What I would say to my colleagues and to the American people is, under FISA and other standards that we are using today, we have far more restraints on our military and the executive branch than history has demonstrated.

We have absolutely not -- we are not going hog-wild restraining American liberties. In fact, the trend has been to provide more and more protections.

And there can be a danger that we go too far in that and allow sleeper cells in this country to operate in a way that they are successful in killing American citizens that could have been intercepted and stopped.

GONZALES: Of course, Senator, we're doing everything we can to ensure that that doesn't happen.

SESSIONS: But when you do domestic -- well, I won't go into that.

Third, Gonzales did not explain why the Justice Department did not go to the FISA court when it wanted more extensive powers to engage in surveillance:

MR. SPECTER Why not take your entire program to the FISA court within the broad parameters of what is reasonable and constitutional and ask the FISA court to approve it or disapprove it?

MR. GONZALES Senator, I totally agree with you that the FISA court should be commended for its great service. They are working on weekends; they're working at night —

MR. SPECTER Now, on to my question.

MR. GONZALES — they're assisting in the war on terror.

In terms of why not go to the FISA court, once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes for the commander in chief which of the tools is appropriate given a particular circumstance. And we studied very carefully the requirements of the Constitution under the Fourth Amendment, we studied very carefully what FISA provides for.

As I said in my statement, we believe that FISA does anticipate that another statute could permit electronic surveillance —

MR. SPECTER O.K., you think you're right, but there are a lot of people who think you're wrong.

As a matter of public confidence, why not take it to the FISA court? What do you have to lose if you're right?

MR. GONZALES What I can say, Senator, is that we are continually looking at ways that we can work with the FISA court in being more efficient and more effective in fighting the war on terror. Obviously, we would consider, and are always considering, methods of fighting the war effectively against Al Qaeda.

MR. SPECTER Well, speaking for myself, I would urge the president to take this matter to the FISA court. They're experts. They'll maintain the secrecy. And let's see what they have to say. . . .

Fourth, Gonzales didn't deny that "domestic" communications such as email or letters or telephone conversations between one American citizen and another American citizen are now subject to NSA surveillance:

MR. LEAHY Let me ask you this. Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black bag jobs?

MR. GONZALES Sir —

MR. LEAHY And under the idea that you don't have much time to go through what you described as a cumbersome procedure — what most people think is a pretty easy procedure — to get a FISA warrant, can you go and do that? Of Americans?

MR. GONZALES Sir, I have tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.

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

MR. GONZALES There is all kinds of wild speculation about what the —

MR. LEAHY Did it authorize it?

MR. SPECTER Let him finish.

MR. 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 hypotheticals.

MR. LEAHY Mr. Attorney General, you're not answering my question. I'm not asking you what the president authorized. 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?

MR. GONZALES Senator, I think that, again, that is not what is going on here. We're only focused on communications — international communications where one part of the communication is Al Qaeda.

That's what this program is all about.

MR. LEAHY You haven't answered my question.

.....

LEAHY: Of course, I'm sorry, Mr. Attorney General, I forgot you can't answer any questions that might be relevant to this.

(LAUGHTER)

Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?

I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?

GONZALES: Sir, I've been asked this question several times.

LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.

GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.

GONZALES: I will say that that is not what we are talking about here. That is not...

LEAHY: Are you doing that?

GONZALES: ... what the president has authorized.

LEAHY: Are you doing that?

GONZALES: I can't give you assurances. That is not what the president has authorized for this program.

LEAHY: Are you doing that? Are you doing that?

GONZALES: Senator, you're asking me again about operations, what are we doing.

LEAHY: Thank you.

Fifth, Gonzales did not deny that his view of the inherent war time powers of the President included his breaking existing laws in matters far beyond the NSA's surveillance program.

FEINSTEIN: Let me go on and tell you why it's a slippery slope.

FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.

Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.

GONZALES: Senator, the president has not authorized any conduct that I'm aware of that is in contravention of law.

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?

GONZALES: Again, Senator, I'm not sure how to answer that question.

The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I'm sorry, your question is?

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?

GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I'm here to...

FEINSTEIN: OK. That's fine.

GONZALES: OK.

FEINSTEIN: That's fine. I just want to ask some others. If you don't want to answer them, don't answer them.

GONZALES: Yes, ma'am.

FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?

GONZALES: Well, of course, Senator, that is not what is at issue here.

FEINSTEIN: I understand that.

GONZALES: This is not about law enforcement, it's about foreign intelligence.

FEINSTEIN: I'm asking a question. You choose not to answer it?

GONZALES: Yes, ma'am.

FEINSTEIN: OK.

Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"?

FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?

GONZALES: Senator, let me respond to -- this will probably be my response to all your questions with these kind of hypotheticals.

And the question as to whether or not -- can Congress pass a statute that is in tension with a president's constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again...

FEINSTEIN: OK, that's fine. I don't want to argue with you.

All I'm trying to say is, this is a slippery slope. Once you do one, there are a whole series of actions that can be taken. And I suspect the temptations to take them are very great. And we are either a nation that practices our rule of law or we're not.

Finally, Senator Spector reminded Gonzales that he could still take the NSA's surveillance program to the FISA court and obtain  legal rulings about all that was going on.  In effect, Spector gave Gonzales and the administration a way out of the mess -- a possibility of a type of retroactive legal ruling and a future fix to the problem.  Gonzales balked.

SPECTER: All right. Now for the 10-minute rounds.

Mr. Attorney General, starting with the FISA Court: well- respected, maintains secrecy, experienced in the field -- and I posed this question to you in my letter -- why not take your entire program to the FISA Court within the broad parameters of what is reasonable and constitutional and ask the FISA Court to approve it or disapprove it?

GONZALES: Senator, I totally agree with you that the FISA Court should be commended for its great service. They are working on weekends, they're working at nights...

SPECTER: Now on to my question.

GONZALES: ... assisting us in the war on terror.

In terms of, "Why not go to the FISA Court?" once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes, for the commander in chief, which of the tools is appropriate given a particular circumstance.

And we studied very carefully the requirements of the Constitution under the Fourth Amendment. We studied very carefully what FISA provides for.

As I said in my statement, we believe that FISA does anticipate that another statute could permit electronic surveillance in a way that...

SPECTER: OK, you think you're right. But there are a lot of people who think you're wrong.

As a matter of public confidence, why not take it to the FISA Court? What do you have to lose if you're right?

GONZALES: What I can say, Senator, is that we are continually looking at ways that we can work with the FISA Court in being more efficient and more effective in fighting the war on terror.

Obviously, we would consider and are always considering methods of fighting the war effectively against Al Qaida.

SPECTER: Well, speaking for myself, I would urge the president to take this matter to the FISA Court. They're experts. They'll maintain the secrecy. And let's see what they have to say.

Will George W. Bush take Spector's suggestion to take the matter to the FISA Court?  According to Associated Press reporter Katherine Schrader, February 6, 2006:

Presidential spokesman Scott McClellan declined to say how the administration would respond to Specter's suggestion that the program be reviewed by the special federal court. McClellan said he didn't want to provide “on-the-spot analysis” of Gonzales' testimony or “get into ruling things in, or out, from this podium.”

And Gonzales may testify again.  That must give George Bush, Dick Cheney and Karl Rove some reason to reflect. According to the News Observer, February 6, 2006:

Sen. Arlen Specter said the committee would hold at least two more hearings in the coming weeks; they may include Gonzales. Specter also has invited former Attorney General John Ashcroft to testify. The Senate's intelligence committee plans to hold a closed hearing on the program Thursday.

Gonzales has failed to adequately protect his President and NSA with the niceties and veils and pros and cons of the law.  The questions about NSA surveillance still loom and have become larger.  More hearings are in the works.  Fireworks! The American public is wising up.  "Heckuva job, Gonzales!"