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.

Tuesday, January 31, 2006

Follow-up on the Gonzales questions

Thank you to everyone who left comments and who e-mailed suggestions, revisions, additions, corrections, etc. in response to the draft set of questions I posted. They were genuinely very helpful and insightful, and I am incorporating a lot of them into a new draft which I hope to post later today. If you have more, please e-mail them or leave them in the comments section to the posts containing the questions.

We are making some progress trying to obtain access to members of the Senate Judiciary Committee in order to convey the questions we want asked and how we want them to be asked. Hopefully, I'll have more updates on this in the next day or so, but it's possible that we may need some blogospheric encouragement of certain Senators in order to accomplish this.

I really think the media is starting to smell some blood here. Every day, particularly in The Washington Post, there is a new component of the story which, by itself, independently adds to the scandal. The Gonzales questioning on February 6 is not the culmination but only the starting point for the investigation into this whole affair. It is definitely time, as I posted earlier today, for the media to pay some more attention to the deceit/falsehood component of this scandal.

A few items to note about the feedback I received from the questions and about the hearings generally:

(1) The April 20, 2004 statement from the President during his speech in Buffalo (h/t Anonymous Liberal via e-mail) ought to be used over and over. His assurance there that the Government always eavesdrops only with court orders is unambiguously false and contains no wiggle room. It is a case of deliberate deceit as he campaigned for re-election and for renewal of the Patriot Act, and regardless of one's views on the merits of warrantless eavesdropping, Americans have a rather deeply ingrained sense that it is wrong for the President to outright lie to the public about an important matter such as this.

The text of that speech is posted on the White House's website, but if anyone knows how or where to obtain a copy of the videotape, please leave a comment or e-mail me. (UPDATE: The video from that clip is here; I know this got some play when the scandal first began but it would likely do a lot more good now).

(2) One of the principal points made in the comments responding to my draft list of questions is that it's important not to have the questioning of Gonzales be overly legalistic or complex. I agree, but want to make a couple of points about this.

It is inevitable that the focus of this part of the hearings will be primarily legal. The witness is the Attorney General and he is there to discuss the Administration's legal theories as to why it had the right to eavesdrop outside of FISA. Many of you formulated questions about the operational aspects of the program, but those are going to be investigated by the Intelligence Committee with different witnesses. The focus of the questioning on Monday will necessarily be legal.

Moreover, there is a difference between legal discussions and legalistic ones. The crux of this scandal is the legal theories which the Administration has embraced, and if approached the right way, they need not bore everyone to death. To the contrary, the central question -- whether the President has the right to act in violation of the law and to claim that neither Congress nor the courts can limit his power -- is one that is quite dramatic and resonates with Americans, who confronted identical questions with Watergate and Iran-Contra.

I purposely did not devote any questions to esoteric and boring legalisms which are more appropriately resolved in legal briefs rather than in televised hearings -- such as whether the AUMF should be read to impliedly exempt the Administration from FISA. Those type of questions, in addition to being boring and impenetrable to large segments of the public (and to even larger segments of mainstream journalism), are also really irrelevant, because the Administration claims that it has unlimited power regardless of the AUMF to eavesdrop on Americans without warrants -- and to do anything else relating to the terrorism threat. That is the danger posed by the Administration and that is something which the public can understand.

That's why, in my view, the principal objective with these hearings is to force that theory out into the open by compelling Gonzales to acknowledge clearly that: (a) the Administration believes it has the unlimited power to engage in any activities relating to the terrorism threat with no possible checks or limitations from Congress or the courts; (b) this power includes engaging in activities even when Congress makes engaging in those activities a criminal offense, as it did with warrantless eavesdropping; and (c) the theories of power espoused by the Administration would enable it to engage in a whole parade of extreme behaviors -- as applied to U.S. citizens and within the U.S. -- which will illustrate just how radical and threatening this Administration has become.

But Gonzales isn't going to just waltz into the hearing and start acknowledging that. It's going to take work to compel him to admit these things -- which means methodically examining the basis for his legal theories, forcing him to articulate the legal principles underlying the Administration's views with regard to specific matters, and then extending those principles to all sorts of other scenarios. Ultimately, there is no coherent way for Gonzales to argue that the Administration is free to eavesdrop on American citizens without any interference from Congress without articulating a principle and a theory that places broad, unchecked Presidential power in George Bush far beyond the realm of eavesdropping. Making that clear ought to be, in my view, the paramount goal of this examination.

That way, this scandal will forever be about whether George Bush has the monarchic power he claims -- to violate the laws of Congress and to act with no checks from Congress or the courts. Those are legal issues but they need to be confusing or boring.

(3) John Aravosis has a post analyzing the latest NSA scandal poll, from NBC News/Wall St. Journal, which was treated by the media as though it contained relatively good news for Bush but which actually reveals just how potentially destructive this scandal could be. Here are two significant questions from this poll (.pdf):

Do you think that the Bush administration should conduct wiretaps of American citizens who are suspected of having ties to terrorists without a court order, or do you think that the Bush administration should be required to get a court order before conducting these wiretaps?

Should be able to wiretap without court order ............... 41
Should be required to get a court order before wiretapping .. 53
Depends (VOL).......................................................... 4
Not sure............................................................... 2

How concerned are you that the Bush administration's use of these kinds of wiretaps could be misused to violate people's privacy--extremely concerned, quite concerned, not really concerned, or not concerned at all?

Extremely concerned ........................... 31
Quite concerned ................................... 25
Not really concerned............................ 22
Not concerned at all............................. 21
Not sure................................................ 1

And, for those fearful Democrats on the Committee and beyond, Carpetbagger points out that the same poll reflects that a very sizable majority (58%-34%) wants the Democrats in Congress to ensure that Republicans and Bush "do not go too far in pushing their agenda" rather than "work in a bipartisan way with Republicans to help pass President Bush's legislative priorities so that we do not have gridlock."

Those are some rather impressive numbers. A solid majority believes that warrants ought to be required even if the eavesdropping is only on those "suspected of having ties to terrorists." And 56% are either extremely concerned or quite concerned about the potential for abuse.

And, most significantly, none of these questions ask whether the public believes that the President has the right to engage in warrantless eavesdropping even where Congress passed a law specifically stating that it is a criminal offense to eavesdrop without judicial warrants. My guess is that a much, much higher percentage of people would disapprove if they knew of that fact and were asked about it.

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