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.
Great work, Glenn. I have a few ideas to e-mail you, or would you prefer I leave them here?
ReplyDeleteThis is fantastic. Are these being passed to the staff members of the Judiciary committee? Is there anyone in DC who can walk some relevant staff members through these questions?
ReplyDeleteGlenn, these are excellent questions. Without spending more time to review, I have only one small suggestion. Question 8(e) might be more accurate to be worded like this: "Is it accurate to say that *the Bush Administration concluded in 2002 that* FISA amendments which these Senators had introduced ...."
ReplyDeleteThis is fantastic. Are these being passed to the staff members of the Judiciary committee? Is there anyone in DC who can walk some relevant staff members through these questions?
ReplyDeleteThat's what we're hoping to accomplish. I'm sure these can be improved on with other people's input and we should try perfect it over the next couple of days - the news will be dominated until Wednesday by Alito and the State of the Union, and then these NSA hearings should get a lot of play -- if, by then, we have a great set of questions and a way to ask them (and really, I think anything will be an improvemnet on what we're likely to hear if they don't listen to anyone besides themselves), we can target some Judiciary Committee members to encourage them to listen to our questions and really use them.
As for the hearings, Gonzalez is just the first witness - I assume, especially if the hearings go well, that there will be others.
The Committees are still fighting amongst themselves over who gets to do what, which is just one of the reasons I thought a Select Committee to investigate the whole thing was a good idea. But Harry Reid did a conference call with some bloggers a couple weeks ago and I asked about this and he was completley unwilling to consider it. He has some weird bureaucratic problem with Select Committees and wouldn't even consider the idea. So for now, at least, these hearings are what we have.
Glenn, you said:
ReplyDeleteThe scandal is about -- and these hearings must therefore emphasize -- the scope of the President’s claimed powers,. . . .
While I do not disagree, is the Senate Judiciary Committee, procedurally, the correct place for this discussion? If not, could the Repubs stifle such a discussion by declaring such question outside the committee's purview?
Anon again, sorry did not see your comment about Reid and Select Committees. Seems like a bummer to me.
ReplyDeleteIf not, could the Repubs stifle such a discussion by declaring such question outside the committee's purview?
ReplyDeleteIt's a good point, but the Administration's theories of its own power is unquestionably part of these hearings. The title of the hearings is "Wartime Executive Power and the NSA's Surveillance Authority."
Additionally, Specter has made clear with his own questions that all of this is on the table. You couldn't have a hearing on the NSA issue without understanding and examining the Administration's "wartime" power theories.
I see over at Larry Johnson's site the discussion exploring the reason for ignoring FISA is probably that the "reasonable/probable" cause was garnered via torture. Point being that admin would lose a two-fer if that aspect came out.
ReplyDeleteI think I would like to make it simple at first:
ReplyDelete1. Are you a citizen of the US?
2. Do citizens have to follow the law?
3. Do you have to follow the law?
4. Is the president a citizen?
5. Does he have a SS#?
6. Can a non citizen be president?
7. Is a president allowed to drive faster than the posted speed limit?
8. Can he not file an income tax return?
9. Does the president have the right to vote in a general election?
Why ask? To establish that the president is just another citizen. The public needs to see this. They need a comparison. The public most often compares to themself. It "frames" the issue. It determines their self preception that then can lead to more controled questions on the details. We should not assume how they see themself or the office of the president.
I mean, questions about legal interpretation are needed. But, the country needs to understand the ideas they hold are not just simple issues of opinion based on the meaning and order of words. They need to know the answers come from a belief about what the office of president is.
And most important: At what time after the term of presidency is over are the exemptions from law no longer in effect?
Mr. Atty General: Why is it necessary to operate this program without any judicial review or oversight? What security gaps would be widened, what threat would be increased if there were an on-going review of these activities by members of the FISA court. This review would be conducted in such a way that it would not impede the operational requirements of the program, but would provide an assurance that wiretaps were not conducted for any non-security reasons.
ReplyDeleteIt's time to contact your representatives in DC...
ReplyDelete"Those who would sacrifice liberty for security deserve neither?"
-- Ben Franklin.
The tension between effectively fighting terrorism and civil liberties is a deeply serious issue, and needs attention from serious people. The current attempt by Karl Rove and the Bush administration to frame the NSA security scandal issues as, “You are either on the side of the President or al-Qaeda” -- is an extremely superficial and dangerous argument with far reaching consequences that must now be made clear to the American people. I am writing in order to urge all of the Senators involved with the Senate Judiciary Committee hearing, scheduled for Monday, February 6th, 2006, to ask questions that are relevant to the issues at stake.
Included below is a list of questions from the NYC Constitutional lawyer, Glenn Greenwald’s web blog, that I believe are an essential starting point on this debate, which might very well lead to the impeachment of this president. The issue is that profound, regardless, of the real and potential threat of a future attack on Americans by terrorists using WMD’s, and the need for new techniques and methods for preventing future threats!
I believe we can both “legally” fight terrorism, (preserving our Constitutional Republic with its imperative need for a system of checks and balances) and preserve civil liberties. We do not need an Executive branch that legislates from the Oval office, by claiming expansive unchecked War powers. Moreover, I know that others who share an identity of “Americans as freedom loving people” can be made to understand that we are moving too far in the direction of a government where the Executive branch has unchecked powers that have, can, and will, be misused at the expense of our way of life -- in the name of security.
I think the core issue here is that the 9/11 impact goes far beyond the grisly tally of lives lost and damage done. Most Americans felt it as a direct assault on their identity as Americans. Telling them, 'don't be so afraid,' is NOT going to work.
What might work is telling them -- repeatedly -- that the Republicans are also launching an attack on their identity as Americans ... in ways that are even more insidious. I believe that the Bush administration is undermining our fundamental American freedoms in an ineffectual and counterproductive 'war on terror' and that this argument should resonate with more and more Americans (both its citizens and Legislature) who otherwise would have identified themselves with the Bush agenda in the early days after 9/11.
Glenn Greenwald writes:
Given Friday's post on the humiliation of Congress, perhaps the first question should be: "Is there any point in holding these hearings?"
ReplyDeleteGive it to Kennedy.
The other part to the administration's argument relies upon a slippery definition of "wartime." The AUMF does not constitute a declaration of war, so the argument that a president has special superpowers during wartime rests on the president alone saying that wea are at war.
ReplyDeleteSo a question might go something like this: If the Congress has the power to declare war, does the Congress have the power to declare that a war is at an end? Does the GWOT fall under the War Powers Act? Does Congress have the authority under the Constitution, other than by cutting off funding, to stop a war?
The next step is to draft the best possible answers from Gonzales, where "best possible" isn't the all-too-likely dodge (e.g. "The President's protecting your right to ask these silly questions, Glenn.") but rather the best legal response to those points, and then provide fact-based rebuttals to those supposed responses. The goal being to box Gonzales in and thus force him off his probable talking point (how the President's protecting us) and in to either a guilty silence or a foolish mistatement.
ReplyDeleteThe goal being to box Gonzales in and thus force him off his probable talking point (how the President's protecting us) and in to either a guilty silence or a foolish mistatement.
ReplyDeleteExactly - there are ways to really slice Gonzales no matter what answers he gives to these questions. As any even decent litigator who has ever prepared for a deposition will tell you, it is necessary to be prepared several steps ahead of any witness and be prepared for any answer which might be given.
It is really so easy here. Gonzales is nowhere near the witness Alito was in terms of intellect, expertise or skill, and his position is infinitely more vulnerable for so many reasons. If the Senate Judiciary Committee members are properly prepared, they can destroy Gonzales, create a lot of damaging TV moments, and really give this scandal the smell of corruption and falsehoods which pervade it. Sadly, that's a big, big "if."
If I were the ACLU, I'd try to hire you tomorrow.
ReplyDeleteExcellent work, seriously. This country needs more people like you.
These are good questions, but of course the interesting part is *their answers*!! So, as a good lawyer, asking questions to which you already have some or a good idea of the response, what are the responses to the responses?! grin!
ReplyDeleteI also think it would be a good idea to probe the possibility of Congress limiting the President's wartime powers, since the administration's entire argument is based on being the Commander in Chief which means absolutely nothing unless Congress declares war. Can Congress rescind the AUMF? amend it to specifically omit warrantless spying on American citizens?
ReplyDeleteSurely the President does have some emergency powers. For instance, no rational person believes that the President would have to have provided some form of due process before taking the lives of American citizens flying on the hijacked planes on September 11th had the decision been made to shoot those planes down. This potential out for the administration (in the court of public opinion, if not in actual jurisprudence) must be cut off by emphasizing the word "emergency" and the ridiculousness of shoehorning an endless, ill-defined "war" into the concept of an emergency.
Finally, the most important thing is that the Senators not sound like lawyers at this hearing. These questions are great, but even I (a lawyer, albeit a young one) would have some difficulty figuring out whether the answers to these questions actually did any damage to the administration or not. There's no "gotcha" if no one can understand what's going on.
With respect to question 1(e):
ReplyDeleteOver the weekend, President Bush claimed that his powers were not unlimited (even in "wartime"), and gave as an example that he did not have the authority to order torture.
Given the Administration's position on the President's powers, and Congress' alleged inability to limit said powers, where does this alleged limit on the President's power derive from?
And even more important, who gets to decide where those limits are?
One of the administration's original power usurpation defenses was that members of Congress were advised repeatedly of the presidents program. Those statements imply that the administration told certain members of Congress that they were no longer going to be held to FISA wiretapping requirements. We need additonal follow-up questioning in this area. Did they in fact fully notify the 'Gang of Eight' that they had decided FISA could be ignored due to the AUMF, and that FISA was no longer mandatory for them? Did they also tell members of Congress that in fact they had already ceased complying with FISA quite some time ago?
ReplyDeleteOr was their recent claim that they had been briefing Congress all along just another lie in a very long string of lies?
It's never been established whether Congress has the right to undeclare war, but it has never been questioned that Congress can stop a single dime from going to any program, including an ongoing war. That's the answer to 1(d).
ReplyDeleteI enjoyed Dan Becker's comments, since that's how a self-respecting Republic must be set up (same laws for everyone).
I'm reading through these and I'm getting a bad feeling.
ReplyDeleteIf Alberto is giving the answers, won't that form some sort of baseline?
I mean, it is obvious to me that the Congress has the power to stop lots of things the Bush administration has done (cut off funding for anything it so chooses, including penalty cutoffs (fly one more plane that costs the taxpayers $1 or more and the CIA gets unfunded)).
But these questions give Alberto the chance to lay the groundwork, which Bush-lovers will latch onto, and make things, well, difficult.
Sigh.
These are good questions, Glenn, but long and elaborate.
ReplyDeleteI would ditch some or all of the "set-ups" for at least some of the questions and just ask the question. For example, rather than quoting the Yoo memo, just ask Gonzalez straight up whether it's true that _______ [insert what Yoo said]. If he says no, then the questioner can then say, "so you disagree with Yoo, who wrote _______." The set-ups help tell everyone in the room the relevance of the question, but they'll never make the evening news, so why bother?
I'd also like to see some punchy Q & A that might make good TV. Obviously, you can't literally cross-examine the AG, but couldn't a Seanator get away with something like this:
Q: I want to understand the Administration's position. You're familiar with the FISA statue, right?
A: Yes.
Q: FISA was passed in 1978 in response to the wiretapping abuses of the Nixon administration in Watergate, isn't that correct?
A; I believe that's correct.
Q: It was signed into law by the President of the United States, correct?
A: Yep.
Q: That law, passed by Congress and signed by the President, set out the "exclusive" means by which wiretapping could be done in this country?
A: That's what it says.
Q: And "exclusive" means that no other law could be used to justify wiretapping?
A: Well, [wriggle, wriggle, but who cares what he says because that's obviously what it means]
Q: Now, FISA makes it a crime to wiretap the phone of a U.S. person without getting a warrant first, right?
etc., etc.
Q10(f) - where did the statement in italics come from? should have a reference that ties it back to Yoo or whoever said it to drive home the point more.
ReplyDeletepresumably there was some domestic spying that occured after 911 but prior to AUMF which wasn't FISA compliant (which may very well have been 'reasonable'/excusable).
ReplyDeleteIs there a way to question the AG about the pre-AUMF spying which gets him on the record - and which undermines his position on the post-AUMF spying?
Glenn, you may already be aware of this little tidbit, or it might be redundant to other material you've uncovered. But just in case, I thought I'd bring it to your attention.
ReplyDeleteLost in the middle of a 4,000-word official transcript is a sworn statement that directly contradicts the major alibi Bush has been floating. Here's what Congress was told in 2002: "Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year."
That declaration is found here: "Statement of Associate Deputy Attorney General David S. Kris, Before the Senate Judiciary Committee, Concerning the Foreign Intelligence Surveillance Act, Presented on September 10, 2002."
This is the Bush administration telling Congress (in the course of discussing certain relatively obscure details of the Patriot Act) the same crap Bush has told the public over the last few years: that wiretaps still required a warrant, because the Patriot Act didn't change anything in that regard.
Kris is making a simple, direct, categorical statement that flies in the face of the alibi Gonzales is trying to sell us: that AUMF authorized the president to do something new.
More detail in a little diary I wrote here.
Good questions all. It appears, especially witrh the later questions, that these are made to reflect the problems we can expect to have with getting any questions answered, but I just thought I'd reiterate what those problems are:
ReplyDelete1) If the AG thinks it won't be verifiable, he'll just lie.
2) If it will be verifiable, and could be potentially damaging, he'll try to give an answer that does not actually address the question, though initially it seems to.
3) If people call him on evasiveness or lying he may simply try not to answer at all.
4) If he still somehow comes off looking bad the Republican media will simply downplay what happened, or not give it any play at all. They may also talk abotu vicious, horrible democrats, especially if the attroney general's wife or family members are allowed to attend.
5) If worst comes to worst, Bush simply says Gonzalez screwed up and, in extremis, fires Gonzalez. None of it blows back to Bush.
Like teemack said, these questions are great, but they lack "zazz". So here is my zazz suggestion.
ReplyDeleteMaybe some more time on the criminal and civil penalties for this kind of lawbreaking would be appropriate, maybe best seen as an addendum to Question 5. From FISA (electronic surveillance):
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
...
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
This might drive home the point that Bush's spying is on face illegal. Then Democrats can put Gonzales on the defensive, "How can the President say the AUMF authorized an illegal program? That sounds ridiculous," the sorts of questions that take for granted that the NSA spying program was illegal, then go on from there. Don't explain why the program is illegal, force Gonzales to tie himself in knots explaining why it is legal. Then say that his explanation is still completely ridiculous.
We don't just want to be right, we want the media and the public to begin with the assumption that this was illegal.
Here's a question for the AG:
ReplyDeleteI light of this statement:
The Congress shall have Power [...] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; [...]
To make Rules for the Government and Regulation of the land and naval Forces;
If Congress passes a law regarding the detention of people suspected of being terrorists, must the President obey the letter of it in all circumstances?
Also, I heartily second Dan Lewis's comment. Make the specified punishment clear to everyone--tie the consequence to the action.
ReplyDeleteThis is obviously going to be the basis for a pretty good question from Sen Feingold.
ReplyDeleteGlenn - I wish you could coach our Dems before hearings! They LOOK like the underdog and don't present well. They've on the bottom for so long - and it shows.
ReplyDeleteRethugs exhibit a god-like appearance and I so wish our Dems could LOOK more confident.
I'm afraid Gonzo will be as calm and cool AND vague as ScAlito - causing our Dems to become frustrated. And you know the rethugs are practicing!!
Glenn,
ReplyDeleteGreat work. I think that you're on to an excellent set of questions. Two points, though. I think some of the respondents (for instance, "Does the President have to obey the speed limit?") are on to an important part of the process: Framing. The battle has two fronts: First, getting them to admit in legalistic terms that they don't have a leg to stand on, and second, framing the issue so that the public will understand the impact of the answers.
Taking your question #2, for instance, with some thought it's easy to imagine that the A[utocrat]G[angster] will respond with a long-winded, vague, rambling answer typical of his administration when pinned down. Point scored, perhaps, with people who are already against him. But not in the living room, not with swing voters, no momentum gained. That's what happened again and again with Alito, even when a dem senator occasionally startled awake and asked something relevant.
We need to help the committee to paint a stark, honest picture of the logical extensions of his answer. That's easy to do, because know what the answer _has to be_ without even waiting for him to say it, don't we? He has to essentially, in every case, say that illegal and unlimited power on the part of the president is okay. And in every case, we have to offer credible examples of why it's not.
The committee needs to do what Gore did, reminding people of why we should _never_ abandon civil liberties, and knew that even in much worse moments of our history. Describe what life will be like on a typical day in 2030.
Second point: Has anyone been working on follow-ups for the 15 Specter questions? Again, thinking on two fronts: Getting Gonzo to trip himself up legally, but also _completely forgetting about him and speaking directly to the public through evocative scenarios illustrating the future of our country if he's allowed to get away with what he's done_. Such stories can easily be sketched for his answers to Specters questions.
The dems on the committee need all the help they can get, but in the snippets of the Alito hearing that I saw, there wasn't a single chilling moment. Me, I'm scared for myself, my friends, and my children of what the US could become if this administration has its druthers. We need to help other people get a little scared. That may sound Machiavellian but look, it's not like WMD -- this is real danger, so we really do need people to be afraid. We have natural allies in strong conservatives and libertarians on this issue. How can we help others to get scared as well, and angry?
Chris.
If 72 hours is not adequate, how many times has the Administration returned to FISA to seek a post-surveillance authorization warrant after 96 hours? After 144 hours? How many hours would be adequate in your view?
ReplyDeleteDoes Congress have the authority to decide the number of hours allowed or does the President?
I'd like to see some expansion on how Gonzales planned to recognize the impact for a prosecutor that warrantless wiretaps will have.
ReplyDeleteThis is all fantastic, Glenn. I hope these questions and others like it find their way into the hearings. Forget about the spouses--it's time to make a witness cry.
ReplyDeleteI don't know if this is the right hearing for this question but I would like to ask about the Constitutionality of the White House refusing to hand over documents requested by Senate Committees and other Commissions. How can the Senate provide checks and balances if they cannot do thorough investigations? We absolutely must have more transparency.
ReplyDeleteHow can the Senate provide checks and balances if they cannot do thorough investigations?
ReplyDeleteThey can't. It's been repeatedly demonstrated that every single action taken by the President is not automatically covered by executive privilege, so the Senate has ample justification for getting what they need for oversight. But they don't want to, because the President is also a Republican. That's all there is to it: IOKIYAR. Congress can make life very unpleasant for an Executive that is not forthcoming with requested documents, if it wishes to. But the Party comes first, always. Well, first comes either personal financial enrichment or obeying James Dobson, but second comes the Party. I think "checks and balances" shows up at #38, at the highest. And "country" not at all, since almost half of the voting electorate chose a traitor.
--mds
I am toubled that the discussion seems to ignore the fourth Amendment. Gonzales has never mentioned the Bill of Rights so far as I've seen. The press never talks about the Fourth amendment. The Dems never refer to the language of the Amendment. Am I missing something?
ReplyDelete