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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, January 30, 2006

Questioning the Attorney General

The Senate Judiciary Committee has scheduled the first day of hearings for its investigation into the NSA eavesdropping scandal for Monday, February 6 (a week from today). The first (and only) witness for that day will be Attorney General Alberto Gonzales.

The focus of the questioning will be the legal justifications for the Administration’s decision to eavesdrop on Americans without the judicial oversight and approval required by FISA. The operational aspects of the eavesdropping program -- i.e., what type of eavesdropping was engaged in, the reasons why it was necessary to eavesdrop outside of FISA, etc. -- will be investigated by the Senate Intelligence Committee, in as-yet-unscheduled hearings to take place in both opened and closed session.

The Senate Judiciary Committee did not exactly display great skill and acumen in questioning witnesses during the Alito hearings. As a result, there is substantial concern about whether its members will ask the necessary and relevant questions of the Attorney General, and more importantly, whether they will do so in a way (including with follow-ups and documentation) which will elicit and reveal the Administration’s real theories of its own power, and highlight the contradictions underlying those theories, as opposed to simply allowing the Attorney General to breezily recite pre-prepared talking points without really being challenged.

I believe we should not leave it up to the members of the Judiciary Committee -- again -- to decide for themselves which questions will be asked. We should try to play an active role in demanding that the Attorney General be held accountable and that the real questions raised by this scandal be meaningfully explored.

Towards that end, I have created a preliminary list of what I believe are the ten most significant and pressing questions (although I admittedly cheated with the number of questions by employing a standard lawyer trick of packing in sub-parts to the questions, but at least I openly acknowledge my treachery). I hope anyone who has additions, revisions, changes or other ideas will add them over the next couple of days so that we can have a comprehensive list of the questions that ought to be asked and how those issues ought to be pursued, and then urge the Judiciary Committee to pursue them.

For the sake of manageability, I have divided the 10 questions into the following two posts -- first, questions 1-5, then questions 6-10. Judiciary Committee Chair Arlen Specter last week sent a list of fifteen questions to Attorney General Gonzales. Many of those are obvious questions and I constructed my list so as to not overlap with Specter’s list. Please leave any comments on this post, not the other two.

I believe the paramount objective with these hearings is to force out into the open the theories of Presidential power which the Administration has embraced in order to justify its transgressions of FISA -- not just as applied to eavesdropping but with respect to all decisions broadly relating to the question of how this country will respond to the threat of terrorism. Thus, the questions posed to Attorney General Gonzales should absolutely not be confined strictly to the question of the NSA eavesdropping program, but must explore how the Administration’s theories of its own power apply generally.

The Committee, with its questioning, must make clear to the public that this scandal is not about whether we should be eavesdropping on Al Qaeda, because everyone agrees that we should and must do that. That is why we have a law -- FISA -- which specifically authorizes eavesdropping on terrorists. Nobody opposes eavesdropping. The scandal is about -- and these hearings must therefore emphasize -- the scope of the President’s claimed powers, and specifically his claimed power to act without what the Administration calls "interference" from the Congress or the courts, even including -- literally -- engaging in actions which are expressly prohibited by the criminal law.

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