Gonzales’ claims about wiretap irk Senate panel

July 1, 1993

StoryImage( ‘/Images/Story//Auto-img-11400373497536.jpg’, ”, ‘Alberto Gonzales’);

U.S. Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee last week in an effort to justify President George W. Bush’s program of spying on American citizens.

Sidney Blumenthal, writing in the UK’s Guardian newspaper, described the hearing: “The scene at the Senate was acted as though scripted partly by Kafka, partly by Mel Brooks, and partly by John le Carre.”

U.S. Sen. Arlen Specter, Republican chairman of the committee, insisted Gonzales not be put under oath. After that, wrote Blumenthal: “The Attorney General argued that FISA (Foreign Intelligence Surveillance Act) did and did not apply, that the administration was operating within it, while flouting it, and that it didn’t matter. The president’s ‘inherent’ power, after all, allowed him to do whatever he wanted. It was all, Gonzales said, ‘totally consistent.’ His explanation, observed Sen. Arlen Specter…‘defies logic and plain English.’”

The Chicago Tribune quoted Gonzales as saying: “The terrorist surveillance program is lawful in all respects.” The program intercepts communications between this country and foreign nations without previous approval from the FISA court.

Gonzales said these wiretaps are done in cases where one party to an exchange is believed to be an al-Qaeda agent or have some affiliation with that or some other terrorist group. He declined, however, to say who was being surveilled or how many such wiretaps have been performed. The program has been operating since shortly after the attacks of 9/11.

When Sen. Joseph Biden, (D-Delaware) requested assurances that only al-Qaeda or other suspected terrorists were subject to surveillance, Gonzales replied: “Sir, I can’t give you absolute assurance. 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 not going to respond to that, I’m not going to answer.”

Sen. Russ Feingold, D-Wis. confronted Gonzales: “ You’ve taken mincing words to a new high. You let a misleading statement about one of the central issues of your confirmation (a year ago), your view of executive power, stay on the record” until contradicted by the media, Feingold said.

In remarks on the Senate floor earlier this month, Feingold said: “The president issued a call to spread freedom throughout the world, and then he admitted that he has deprived Americans of one of their most basic freedoms under the Fourth Amendment—to be free from unjustified government intrusion.

“The President was blunt. He said that he had authorized the NSA’s domestic spying program, and he made a number of misleading arguments to defend himself. His words got rousing applause from Republicans, and even some Democrats.

“The President was blunt, so I will be blunt. This program is breaking the law, and this President is breaking the law. Not only that, he is misleading the American people in his efforts to justify this program. How is that worthy of applause?”

Gonzales snapped: “I told the truth then, I’m telling the truth now.”

The committee was skeptical, however, of Gonzales’ claims. Former Air Force lawyer, Sen. Lindsey Graham, doubted the legality of the wiretap program. Graham said he never meant to give Bush “the ability to go around FISA carte blanche” when he voted to invade Afghanistan.

Graham further held that Gonzales’ argument that the president has the necessary constitutional power to do whatever he likes “could basically neuter the Congress and weaken the courts” if taken to its conclusion.

U.S. Sen. Dick Durbin, (D-Ill.) declared flatly that the wiretap program is illegal and lacks needed oversight.

Gonzales steadfastly maintained the issue of the program’s legality turns on the matter of probable cause. He told the committee: “The precise language that I’d like to refer to is: “There are reasonable grounds to believe that a party to communication is a member or agent of al-Qaeda or of an affiliated terrorist organization.” It is a probable cause standard, in my judgment.”

The Washington Post, however, reported that former Attorney General John Ashcroft and former National Security Agency Director Michael Hayden told the FISA court judges the government could never meet the probable cause requirement.

FISA court judges, according to The Post, told senior administration officials that the president’s eavesdropping program, if made public and challenged in court, ran “a significant risk of being declared unconstitutional.”

The New York Times, commenting Gonzales’ performance, said: “On the absurd pretext of safeguarding operational details, Mr. Gonzales would not say whether any purely domestic communications had been swept up in the program by accident and what, if anything, had been done to make sure that did not happen. He actually refused to assure the Senate and the public that the administration had not deliberately tapped Americans’ calls and e-mail within the United States, or searched their homes and offices without warrants.”

Back in January, in Washington, D.C., former Vice-President Al Gore delivered a speech on Martin Luther King Day. On that occasion, he said: “As we begin this new year, the executive branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses. It is imperative that respect for the rule of law be restored in our country.”

Gore said further: “..On this particular Martin Luther King Day, it is especially important to recall that for the last several years of his life, Dr. King was illegally wiretapped—one of hundreds of thousands of Americans whose private communications were intercepted by the U.S. government during that period.”

That, he said, is what led to the FISA law. Gore said that what little we do know about the wiretap program makes almost inescapable the conclusion that the president has repeatedly and insistently broken the law.

Gore said: “A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. They recognized that the structure of government they had enshrined in our Constitution—our system of checks and balances—was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: “The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.”

Gore added: “An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution—an all-powerful executive too reminiscent of the King from whom they had broken free.

“In the words of James Madison: ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’”

From the Feb. 15-21, 2006, issue

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