Monday, February 06, 2006

THE GONZALES HEARINGS Here's a representative snippet:
LEAHY: Your testimony is that, virtually immediately, you determined you had the power to do this warrantless wiretapping because of AUMF.

You didn't ask anybody up here. Did you tell anybody that you needed something more than FISA?

GONZALES: Sir, I don't recall. Did I tell anyone in Congress or tell...

LEAHY: Congress. I said Congress first.

GONZALES: Sir, I don't recall having conversations with anyone in Congress about it.

LEAHY: Do you recall that anybody on this committee, which actually is the one that would be amending FISA, was told?

GONZALES: Sir, I have no personal knowledge that anyone on this committee was told.

LEAHY: Apparently then, according to your interpretation, Congress -- and a lot of Republicans and a lot of Democrats disagree with you on this when we voted for the authorization for military force -- that we were authorizing warrantless wiretapping.

Did we -- were we authorizing you to go into people's medical records here in the United States by your interpretation?

GONZALES: Senator, whatever the limits of the president's authority given under the authorization of the use of military force and his inherent authority as commander in chief in a time of war, it clearly includes the electronic surveillance of the enemy.

LEAHY: Well, just let it be noted that you did not answer my question. But here you also said, "We've had discussions with the Congress in the past, certain members of Congress, as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat. We were advised that that would be difficult, if not impossible."

That's your statement. All right. Who told you that?

GONZALES: Senator, there was discussion with a bipartisan group of leaders in Congress, leaders of the Intel Committee, to talk about legislation. And the consensus was that obtaining such legislation -- the legislative process is such that it could not be successfully accomplished without compromising...

LEAHY: When did they give you that advice?

GONZALES: Sir, that was some time in 2004.

LEAHY: Oh, three years later. You mean you've been doing this wiretapping for three years and then suddenly you come up here and say, "Oh, by the way, guys, could we have a little bit of authorization for this"? Is that what you're saying?

GONZALES: Sir, it's always been our position that the president has the authority, under the authorization to use military force and under the Constitution.

LEAHY: It's always been your position but, frankly, it flies in the face of the statute, Mr. Attorney General. And I doubt very much if one single person of Congress would have known that was your position, had you not known the newspapers were going to print what you were doing -- not that anybody up here knew it.

When you found out the newspapers were going to bring it, you came up here.

Did you talk to any member of the Judiciary Committee that would actually write it?

And let me ask you this: Did any member of this committee, this Judiciary Committee which has to write the law, did anybody here tell you we couldn't write a law that would allow you to go after Al Qaida in the way you're talking about?

GONZALES: Sir, I don't believe there were any discussions with any members of the Judiciary Committee...

LEAHY: Even though we're the ones that have to write the law, and you're saying that you were told by members of Congress we couldn't write a law that would fit it, and now you tell us that the committee that has to write the law never was asked.

GONZALES: We had...

LEAHY: Does this sound like a CYA on your part? It does to me.

GONZALES: We had discussions with a bipartisan leadership of the Congress about this program.

LEAHY: But not from this committee. We have both Republicans and Democrats on this committee, you know?

GONZALES: Yes, sir, I do know that.

LEAHY: And this committee has given you, twice under my chairmanship, we have given you five amendments to FISA because you requested it.

But this, you never came to us.

Mr. Attorney General, can you see why I have every reason to believe we never would have found out about this if the press hadn't?

LEAHY: Now, there's been talk about, "Well, let's go prosecute the press." Heavens, thank God we have a press that at least tells us what the heck you guys are doing because you're obviously not telling us.

GONZALES: Sir, we have advised bipartisan leadership of the Congress and the Intel Committees about this program.

LEAHY: Well, did you tell them that before the passage of the USA Patriot Act?

GONZALES: Sir, I don't recall when the first briefing occurred. But my recollection is that it was shortly after the program was initiated.

LEAHY: OK, well, let me ask you this, then.

You say, several years after it started, you came up here and talked to some group of members of Congress. The press reports said that the president's program of spying on Americans without warrants was shut down for some time in 2004. That sounds like the time you were up here.

If the president believed the program was necessary and legally justified, why did he shut it down?

GONZALES: Sir, you're asking me about the operations of the program.

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


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.

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.