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, February 06, 2006

Preview of Sen. Kennedy's questioning tomorrow

For whatever it's worth, I received the following preview from Sen. Kennedy's staff regarding his intentions for questioning Alberto Gonzales at tomorrow's hearings (I'm posting this with their consent):

So as I suggested on Friday – Kennedy is going to take an interesting, unexpected approach in Monday's wiretapping hearings.

First of all, again as we discussed - all Dems on the panel are going to emphasize that they take a back seat to no one when it comes to national security, and they arent going to fall into Karl Rove’s trap that asking questions about a questionably illegal program is similar to handing the terrorists our playbook.

But Kennedy will take that further by questioning Gonzales about the effectiveness of the program from the national security standpoint, believing that this rogue program is harmful because by ignoring around FISA it 1) our national security is actually weakened when the country is divided – and we aren’t protecting those intelligence officials who are working to protect us (if the President’s legal analysis is wrong – these people could go to jail for breaking the law) and 2) raises the risk that terrorist go free - given that the evidence is tainted because it isnt sanctioned by law.

In addition, Kennedy will underscore how willing Congress was/is to give the President the tools he needed, and question Gonzales why they parted with history in deciding to circumvent the time honored (and Constitutionally required) system of checks and balances. He will strongly contend that Congress is willing to work with this administration.

There are documents from the Ford Library detailing Kennedy’s unique role, as the principle author of FISA – including 1) Kennedy’s statement how well the Administration was working with them, including Antonin Scalia who was Assistant Attorney General for the Office of Legal Counsel from 1974-1973 2) how Attorney General Levi supported the law and 3) how important it was for the Adminstration to have Kennedy’s backing. In contrast to this Administration’s lack of trust in Congress – the Republican Administration under Ford actually came to Kennedy and asked him to take the lead on introducing FISA.

Also, as you saw today on MTP, Specter said that nothing in the AUMF mentions electronic surveillance – exactly what resolution offered by Kennedy and Leahy says, S. Res. 350....

I hope you can get people to see that working outside of the system in fact harms our national security. Let me know what you think. And again, thanks for coming over on Friday.

I agree that this is an "unexpected" approach. And the DoJ itself made exactly this point in 2002 when it explained why it opposed the DeWine Amendment - saying that eavesdropping without probable cause would harm national security by jeopardizing prosecutions of terrorists by allowing them to argue that the prosecution is tained by unconstitutional means of obtaining evidence.

I'll reserve judgment otherwise until I see this questioning in action and, more importantly, how it's coordinated (if it is) with questioning by the other members.

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