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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.

Thursday, January 18, 2007

The Grave and Epic War -- Spending time with Alberto Gonzales, Orrin Hatch and Russ Feingold

The inanities one observes when watching Congress in action exceed those which one finds anywhere else on the planet outside of the right-wing blogosphere. At today's Senate Judiciary Committee hearing to which I am currently (and quite temporarily) subjecting myself, starring Alberto Gonzales:

Orrin Hatch spent the first two minutes of his time "questioning" Gonzales by lauding Gonzales' extreme integrity and diligence during this Grave and Epic War on Terrorism that America faces, explaining that everything they've done is critical to protecting us and describing the time in which Gonzales is Attorney General as one of the most difficult and important in history -- Hatch emphasized that he means not only U.S. history, but in the history of the whole, wide world. That is really what he said. He did not ask one question about anything the DOJ is doing with regard to this Most Important Matter Ever.

Hatch then spent the rest of his time (all 6 minutes) demanding that Gonzales and the Justice Department devote much more of its resources and attention -- including FBI agents, other law-enforcement resources and a new task force -- to enforcing anti-obscenity laws against people in the U.S. who produce pornography, particularly those who sell it over the Internet, and urged that whole new laws be created to criminalize Internet pornography. Hatch praised the anti-pornography law passed last year called "The Adam Walsh Act" (guided through Congress by its main sponsor, Republican Congressman Mark Foley), but then insisted that whole new laws and far more substantial efforts were required to battle the perverse and destructive wickendness of sex films. Gonzales assured him they were devoting many investigative resources to enforcing obscenity laws.

Or, to put it another way, the Terrorists pose such a grave danger to our Republic that it is the most threatening and important time Ever, justifying whole new expansions of government power and total government secrecy in order to protect us and to win this War because the Terrorists want to kill us all, and our law enforcement resources should therefore be poured into imprisoning people who make adult films and putting an end to pornography. That's what Orrin Hatch said today.

* * * * * * * *

This is what I have learned so far: All of the Senators are very "concerned" and sometimes even "disturbed" about many things, almost all of them different for each Senator. Gonzales definitely shares their concerns about everything, and assures them he takes it very seriously and he is happy to sit down with them and explore ways to fix/improve/think about it.

For any information the Senators want, Gonzales does not have it, but he will definitely endeavor to get it for them. When pointed out that he has made the same promises many times before and told them nothing, he assures them them he is working diligently to get it, but that it is a very complex matter, and they are entitled to it and will have it (sometimes he politely denies ever having promised it before but then says he will get it anyway).

Sen. Feingold is starting now so I am hoping matters will take a more susbtantive and consequential turn.

* * * * * * * *

Feingold began by pointing out that the administration, including Gonzales, has many times accused opponents of the "Terrorist Surveillance Program" -- meaning those who insisted that eavesdropping take place within the law, within the FISA framework -- of "opposing eavesdropping on terrorists" (I can find 20 examples in 5 minutes of that).

Feingold's first question - "do you know of any one in the country who opposed eavesdropping on terrorists?"

Gonzales: Sure - if you look at blogs today, there is a lot of concern about all types of eavesdropping, who don't want us eavesdropping at all.

Feingold: Do you know anyone in government who ever took that position?

Gonzales: No, but that is not what I said.

Feingold: It is a disgrace and disservice to your office and the President to have accused people on this Committee of opposing eavesdropping on terrorists.

Gonzales: I didn't have you in mind or anyone on the Committee when I referred to people who oppose eavesdropping on terrorists. Perish the thought.

Feingold: Oh, well it's nice that you didn't have us "in your mind" when making those accusations, but given that you and the President were running around the country accusing people of opposing eavesdropping on terrorists in the middle of an election, the fact that you didn't have Congressional Democrats in "mind" isn't significant. Your intent was to make people think that anyone who opposed the "TSP" did not want to eavesdrop on terrorists, even though that was false. No Democrats oppose eavesdropping on terrorists.

Gonzales: I wasn't referring to Democrats.

So, apparently, all those speeches Bush officials and their supporters have spent the last year giving accusing people of opposing eavesdropping on terrorists, and all the television commericals making the same accusations throughout the months leading up to the election, were not about Democrats at all, but were about random bloggers who are against all eavesdropping. Where? Maybe on Smirking Chimp and Democratic Underground. That is who they meant when they were talking about opposing eavesdropping on Osama bin Laden. They didn't mean Democrats in Congress. The entire campaign and all of those accusations were directed only to the bloggers who don't want them eavesdropping at all.

I confess to finding that exchange deeply revolting though satisfying at the same time. Can't they just all yield all of their time to Feingold?

* * * * *

Their chat ended with Gonzales solemnly assuring all Americans that even though the "Terrorist Surveillance Program" has ended, they are still engaging in full-scale eavesdropping and, as a result, Americans are "no less safe" today than they were before.

In response, Feingold pointed out the painfully obvious -- that that was the whole point all along -- that there was no need whatsoever to eavesdrop outside of FISA and the adminstration's claims that our security depended upon FISA-violating eavesdropping was completely and entirely false.

* * * * *
Schumer begins by making clear that he is not satisfied with this FISC agreement - he says "Clearly, 'the agreement' is better than 'Cheney,' but we don't know what 'this agreement' is."

First question - Do you continue to believe that you have the right to eavesdrop outside of FISA ? You said you did have that power still, so what stops you from just starting to eavesdrop outside of FISA again a month from now?

Gonzales: What we did in the past was lawful.

Schumer: Then you can, at will, just as you instituted this program, you could just go back to it if you get a decision you don't like.

Next question: Is the FISC order you got a case-by-case basis order, a program-wide basis, or something broader? If it is a very broad-brush approval, it doesn't do any good. There is no way to compromise security interests by answering the question.

Gonzales: I am not at liberty to talk about those specifics. To do so requires disclosure of operational details. What I will tell you is that everything is in compliance with FISA. All members of the House and Senate Intelligence Committee have been briefed.

Schumer: Sen. Rockefeller said you didn't brief him. Even Republicans have said in newspapers that the briefing was inadequate and that these are program warrants, and we have to assume that they are program warrants, and it doesn't do anything to satisfy constitutional protections. Are there any specificity in these warrants?

Gonzales: I can tell you everything complies with FISA (i.e., I won't tell you anything).

Schumer: You claim it took you two years to negotiate these new FISA rules. That was more time than you took to plan the war on Iraq. Why would it possibly have taken so long to get these rules in place if you were really trying?

Gonzales: It's very, very complex. It took a long time. We've been trying the whole time to find a way to get it into FISA.

Gonzales keeps saying that they gave these great briefings to everyone on the Intelligence Committee about the new FISA process, but here is what the Times reported this morning:

The administration said it had briefed the full House and Senate Intelligence Committees in closed sessions on its decision.

But Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, disputed that, and some Congressional aides said staff members were briefed Friday without lawmakers present.


I know the answers from Gonzales seem comically non-responsive, even robotic, but I am fairly summarizing them. That is how he testifies - he comes prepared with a menu of empty, platitudinous buzzphrases that he repeats over and over no matter the question. They really could easily devise a very simple Alberto Gonzales Testifying computer program. He doesn't have very many phrases in his arsenal so nothing more complex than DOS-era technology would do the trick, literally.

Leahy said they were going to try to get the FISC order from the head FISC judge and pointed out that Gonzales keeps saying how great the briefings were but everyone who was briefed said they learned nothing (just as was true for everyone who watched these hearings). He also pointed out that all of this doesn't obscure the fact that "the law is the law." They definitely seem angry and diligent, but we'll see if that is followed up by real action.

* * * * * *

What seems to have happened is that they convinced one single FISA judge whom they like to sign a broad, sweeping Order allowing them to do everything they were doing before but declaring it all to be in compliance with FISA. That is why the Committee Democrats are so eager to get the Order. But, as Schumer pointed out, they could just start eavesdropping without FISA warrants again any time they want because they continue to insist that they have that power. And if they did, we would never know (unless someone told Jim Risen again).

That seems like a very compelling reason why the court should continue to decide whether they, in fact, broke the law. The question is not moot even though they are claiming to have stopped warrantless eavesdropping because the conduct in question is both capable of reptition and likely to evade review (because it will be done in secret).

I also think Gonzales has made them sufficiently angry that it will ensure investigations into the program, engendering battles to get information about what they are doing now and, most importantly, what they did before. The administration, needless to say, has not changed one iota as a result of the election and they will not change one iota unless they are forced to. It remains to be seen whether Democrats are up to that.

* * * * * *
I was on Democracy Now this morning with Amy Goodman briefly talking about these matters and the transcript is available here. I also have an article in Salon today concerning the FISA story which is, in essence, a summary of the two posts I wrote about it yesterday.

* * * * * *
The one important fact which I neglected to mention was that Gonzales -- in order to placate Hatch's deep and intense pornography "concerns" -- proudly touted what he called "the Girls Gone Wild prosecution," the epic criminal case where the DOJ prosecuted the producer of that series for failing to keep his paperwork in compliance with the onerous document provisions imposed by one of Mark Foley's many new pornography laws.

So in the middle of the Epic, Overarching, Greatest and Most Important War of Civilizations of this Time and Any Other Time, Alberto Gonzales and Orrin Hatch spent their time at a Congressional hearing designed to exercise Justice Department oversight talking solmenly about Girls Gone Wild.

* * * * *

The Washington Post's Dan Froomkin finds some excellent examples where the President previously (a) insisted that he could not protect the country if he were forced to eavesdrop within the FISA framework and (b) accused Democrats -- not bloggers, but Democrats -- of opposing eavesdropping on terrorists:

"When it comes to listening to the terrorists, what's the Democrats' answer? It's, just say no. When it comes to detaining terrorists, what is the Democrats' answer? Just say no. When it comes to questioning terrorists, what's the Democrats' answer?

AUDIENCE: Just say no!"

The claim that people who opposed warrantless eavesdropping were "opposed to eavesdropping on terrorists" was always an outright lie - one of the very, very few times I have ever applied that term when analyzing or arguing political debates. To say that Democrats (and other critics of the "TSP") opposed eavesdropping on terrorists is not spin. It is just a lie. Democrats favored eavesdropping on terrorists, which is what FISA permits. And the administration knew that. Yet they continuously said otherwise.

And now that Gonzales has to face the people whom he and his Leader falsely accused, he cowardly claims that he never meant them at all, but instead was only referring to some random unnamed blogger who supposedly opposes all eavesdropping, even on The Terrorists. Pretending that the accusation wasn't directed at Democrats when he has to answer them face-to-face is as cowardly as the original accusations were dishonest.

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