Monday, February 06, 2006

The more things change…

On February 6, 1788, this sentence was published in four of New York's five daily papers:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.
James Madison said that in Federalist 51, 218 years ago today.
Today, Attorney General Gonzales whined that news accounts of the warrantless domestic wiretapping program have been "in almost every case, in one way or another, misinformed, confused or wrong." Instead of informing the public, correcting the errors, and clarifying the confusion, he hid behind technicalities, refused to discuss anything, refused to describe what limits, if any, his view of executive power has, and what limits and safeguards actually exist for this program.

From CNet's coverage:
"Can you 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-Qaida or otherwise?" Sen. Joseph Biden, a Delaware Democrat, asked at one point early in the daylong hearing.

"I can't give you absolute assurance," Gonzales replied, before adding, "What I can assure the American people is we have a number of safeguards in place so we can say with a high degree of certainty that those procedures are being followed."

…"The concern is that there is a broad sweep which includes people who have no connection with al-Qaida," [Senator Specter] said. "What assurances can you give to this committee and, beyond this committee, to milions of Americans who are vitally interested in this issue and following these proceedings?"

Said Gonzales, "The program as operated is a very narrowly tailored program, and we do have a great number of checks in place," He said later in the hearing that he was unable to give "specific information about collected, retained and disseminated" except to say that it is done so "in a way to protect privacy interests of all Americans."
The specifics matter. I won't be confident that my private conversations with Ms. TfK aren't on some NSA employee's iPod until someone explains what the safeguards are to prevent that. I don't trust Alberto Gonzales and I don't trust his boss. I'm not expected to.

Senator Leahy: "I'm sorry Mr. Attorney General, I forgot you can't answer any questions that might be relevant."

The President, in the State of the Union: "Previous Presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority."

Senator Feingold:
FEINGOLD: Let me first ask, do you know of any other President who has authorized warrantless wiretaps outside of FISA, since 1978, when FISA was passed?
That is to say, which Presidents was President Bush referring to?
GONZALES: Um, none come to mind, Senator. But maybe — I would be happy to look to see whether or not that’s the case.

FEINGOLD: I can take it as a no unless you submit something?

GONZALES: I can’t give you an answer.
Under the Leahy rule, that's forbidden.

Leahy also said: "Mr. Attorney General, I'm getting the impression this administration picks and chooses what it's subject to."

You mean like testifying under oath? That was shot down on a party line vote.

Some parts of the New York Times' report deserve to be put closer together:
Mr. Feingold has made it clear he is angry about Mr. Gonzales's response a year ago to Mr. Feingold's question about whether he thought the president could, as commander in chief, authorize searches and wiretaps without warrants. Mr. Gonzales said then that "what we're really discussing is a hypothetical situation."



"You wanted this committee and the American people to think that this kind of program wasn't going on," [Feingold] said. "But it was."

Not so, Mr. Gonzales insisted. Last year, he said, Mr. Feingold asked him whether he thought the president could authorize eavesdropping "in violation of the law," and that the question was therefore hypothetical.

"I was telling the truth then," the attorney general said. "I'm telling the truth now."



The panel's chairman, Senator Arlen Specter, Republican of Pennsylvania, said federal law prohibits "any electronic surveillance without a court order." [This paragraph occurred earlier]
If federal law requires a warrant, and this program doesn't involve warrants, it violates the law. QED.

Gonzales testified that warrantless wiretapping was hypothetical, when he himself authorized such wiretapping. Something hypothetical isn't happening. The president actually had authorized wiretapping "in violation of the law," so Gonzales lied. QED.

Senator Feingold is right to be angry. Petty legalism doesn't serve the nation. It serves Mr. Gonzales and it serves the President, but they are supposed to be serving us.

Our Founding Fathers explained this on this very day, 218 years ago.