I haven't seen any of the hearings (they went on for seven hours yesterday, and some people have other lives), but I have tried to follow the news reports (WaPo and NYTimes). The general gist I get of yesterday's hearing was that Gonzales failed to clarify anything. His testimony was that the AUMF that Congress passed in 2001 granted the President virtually unlimited (my phrasing) authority to do whatever is necessary to pursue the war against terrorism. In other words, the President is following the law, and the administration is under no compulsion to discuss publically (or, presumably, privately) what they are doing, to who, how many, why, or how. To do so, Gonzales argued yesterday, would be to reveal information to the terrorists, which hurts our security. Even to approach Congress, in order to get them to revise FISA, is both risky (discussion of the revision would reveal too much information, compromising security) and unnecessary (the adminstration isn't violating any law now, so changing FISA is unnecessary).
This seems damn close to a constitutional crisis, or as close a one as we've had since Ollie North took responsibility for Iran-Contra and headed off that constitutional crisis.
Make no mistake, this is a constitutional crisis on the Congress' part. They have both the authority and constitutional obligation to pass legislation (that the executive oversees) and to oversee the executive's implementation of those laws. The administration position here is that no laws are being violated and (for security reasons) they can't reveal the actual implementation. So Congress will have to trust the administration that nothing bad (or illegal) is happening. The administration may be correct (I doubt it, but its possible). However, that's irrelevant. It's Congress' legal, constitutional, and moral responsibility to serve as an effective and timely check and/or balance to the over-reach of either of the other branches of government (just as it would be the legal, constitutional, and moral responsibility of the executive or courts to check Congress, were they over-reaching). The executive has no power to prevent Congress from overseeing any aspect of their administration - that is, after all, Congress' job. Congress not only has the legal and constitutional right to demand to know what the administration is doing, but has the obligation to do so. Failure to exercise that right is a grave error by Congress.
Congress hasn't fully failed yet; this is only the first day of hearings, and they may choose to have more hearings or in some way further pursue this issue. However, if they pack it in (as they show some signs of doing; Gonzales was not put under oath), that will create a very quiet (but very profound) constitutional crisis: the executive will have claimed a precedent for refusing oversight by Congress. That's the real issue here - I'm worried about my civil liberties, but I'm significantly more worried that the executive will shrug off Congress and take that as carte blanche to move forward in further ways outside the oversight of Congress.
And that's a full-blown constitutional crisis.
Posted by baltar at February 7, 2006 09:05 AM | TrackBack | Posted to The Ever Shrinking ConstitutionAmusingly, part of why I "worked from home" yesterday was because I realized the hearings would be broadcast and I wanted to listen (the other part was because the STEELERS WON THE SUPERBOWL and I was predictably under the weather and probably half my office stayed home). So while I was reading all day (I really did work), I had the hearings on in the background. I was surprisingly impressed with the tone of the Committee; they were pretty aggressive, and they revealed the weak points in Gonzalez's claims, as well as the several ways in which he was bootstrapping, with surprising precision. I was especially impressed with Specter's mercilessness. It was a good showing and a step in the right direction, not for what it revealed about the program so much as for what it revealed about the administration's disdain for oversight (although I didn't realize that Gonzalez wasn't sworn, which is always a big red flag).
Posted by: Moon at February 7, 2006 10:22 AM | PERMALINKA big red flag - but not that unusual these days, sdaly.
Orin Kerr had some interesting posts over on the Volokh Conspiracy yesterday and last night - both on the Supreme Court not adopting Gonzalez's interpretation of the law (in Hamdi) and on what other programs might be out there that Gonzalez refused to discuss or enlighten the senators on (aside from repeatedly noting he was only talking about one specific program yesterday).
Posted by: Armand at February 7, 2006 10:55 AM | PERMALINKFavorite Gonzalez quote from the hearings: "Presidents Washington, Lincoln, Wilson, and Roosevelt all used electronic surveillence on a much larger scale..."
http://movies.crooksandliars.com/gonzales-Washing.mov
Thanks Crooks and Liars
yeah, his evasiveness was most pronounced with regard to the logical extension of his claims regarding intrinsic executive power. if it's true that the constitution without more envisages an executive empowered in time of war or hardship to conduct warrantless surveillance, then it seems equally true that such authority would encompass physical searches as well. schumer, at least, tried to get him to talk about this, asking whether hypothetically the administration believed it has this authority, and gonzalez punted largely by reference to the "operational" excuse -- a particular use of that escape clause that chilled me. are we using that operationally? might we be? the hypothetical seemed a legitimate question, because it amounted to the elementary question: where does this inherent authority end? gonzalez refused to answer, which speaks volumes: this administration doesn't believe the authority does end, and even the most rabid conservative with some background in law has to recognize the tremendous danger such a position entails. it is starting to feel like a constitutional crisis. i just hope everyone does his or her appointed job, as delineated by the constitution.
Posted by: moon at February 7, 2006 12:47 PM | PERMALINKa propos gonzalez's attempt to assure the committee that, contra nixon, the bushies are not using wiretaps and the like to keep tabs on political opponents, perhaps it depends on how you define opponents.
also, regarding the undelimited breadth of executive power, majikthise offers this.
Posted by: moon at February 7, 2006 01:31 PM | PERMALINKMoon,
You bring up an interesting point, comparing physical searches to wiretaps. Now, it's my understanding that when citizens of our country return to this country from somehwere else, or when citizens of other countries visit our country, we have the right to search them when they get here. Why is it we have the right to search their physical person when they connect with another country in a physical way, but we don't have the right to search their communication when they connect with another country in that way? If we look at this in a cybernetic way, it's impossible to miss that a mission component for a terrorist operation can as easily be information itself as it can some physical weapon.
for one thing, i think you take for granted the idea that this surveillance occurs only for international communication, when the suggestions have been rampant and largely unrebutted that once one such contact occurred the person at the american end of that contact may have been exposed to subsequent surveillance. that is, roger, talking to his buddy in kabul, is surveilled in virtue of that conversation in his subsequent conversation with betty, his girl toy who lives in encino.
but taking this premise for argument's sake that the intrusions in question occur only in case of international calls to appropriately targeted parties, i'm forced to acknowledge that your analogy, which to be fair is an interesting one, does not warrant easy comparison. i'd have to look up the law on this one, but i imagine the authority to search at the border is sui generis for a couple of reasons. first of all, the government's power to regulate the national borders is substantially greater, and has been throughout our nation's history, than that it has over people acting solely domestically. note that freedom of movement between the states has been held to be essentially unfettered. similarly, the borders are subject to heavy regulation. this regulatory rationale also is used to justify roadside DUI checkpoints. the laws concerning what you can and cannot carry across the border into the united states are voluminous; the law addressing who you can talk to by email, telephone, and correspondence (gonzo also punted on the question of whether the claimed executive authority allows the government to open international snailmail without a warrant), is, by contrast, sparse.
in any case, in raising this i'm not interested in having a legal argument that no one here is qualified to engage in, but rather to emphasize that gonzo's non-answer was tantamount to refusing to acknowledge any limitations on the executive authority the administration claims to interdict any and all communications it deems of concern, pretty much without exception. that's the position of an imperial presidency, and a position we should all find repugnant.
again, as a good conservative, do you really believe there to be no limits? is that the "free" country you'd like to live in. please don't hedge in replying -- the question is simple: on bush's brute, conclusory assertion that or country is besieged on all sides by terrorists, should he be free to disregard, across the board, all constitutional limitations on government authority without any check whatsoever? in order to support him, you have to aswer yes, because based on gonzo's testimony and the whole pro-unfettered-search party line of the past week or so, that's exactly what he thinks.
Posted by: moon at February 7, 2006 07:57 PM | PERMALINKMoon,
You're confused. According to the WaPo article, domestic calls aren't being wiretapped without a court order.
"Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause."
So in fact this is not domestic regulation, because if people don't connect with foreign countries, they don't get wiretapped.
And at the point I see Bush going past what I see as necessary and appropriate for our defense, I'll let you know. But it hasn't happened yet. I'm not going to give you an abstract, because there's all the other variables that abstractions are blind to.
Posted by: Morris at February 8, 2006 05:03 PM | PERMALINKWonderful! The president gets to decide when people get rights, Morris gets to decide when people get to have protected rights ... it's to avoid such arbitrariness that we have laws in the first place (or that's one of the reasons). B/c where the president stops might be far beyond where you'd stop Morris. But once you've given him unfettered power ... whoops turns out your opinions are meaningless and maybe he'll even have you rubbed out for conversing with known dissenters like those of us here at the Coup.
Posted by: Armand at February 8, 2006 05:22 PM | PERMALINKArmand: good thing we've still got that Second Amendment, then, eh?
Posted by: jacflash at February 8, 2006 05:25 PM | PERMALINKBro,
Who said anything about unfettered power(oh, that's right, not the point, the point is to distract from the real argument)? If a President in the future does something I don't like, I can vote against him or her (go Condi!) in the next election, or I can phone up my illustrious Senators and explain that if they don't kick out the new bum, I'll kick them out (and they'll hang up once they find out I voted against them to begin with). The reason that impeachment isn't a serious issue now is because most of the country thinks the President should be doing exactly what he is doing.
Most of the country? I don't know what polls you're smoking, but you ought to try reading them. The reason impeachment isn't currently on the table is because a) the Senate is Republican and on a choke collar and b) the administration is stonewalling to such an extent that it's impossible to learn what they're doing, which, based on Gonzo's testimony or lack thereof, is exactly how the administration likes it.
As for your WaPo article, it also contains these gems:
Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.[snip]
Other officials . . . said the prevalence of false leads is especially pronounced when U.S. citizens or residents are surveilled. No intelligence agency, they said, believes that "terrorist . . . operatives inside our country," as Bush described the surveillance targets, number anywhere near the thousands who have been subject to eavesdropping.
[snip]
Vice President Cheney has made the administration's strongest claim about the program's intelligence value, telling CNN in December that eavesdropping without warrants "has saved thousands of lives." Asked about that Thursday, [Air Force Gen. Michael V. Hayden, the nation's second-ranking intelligence officer,] told senators he "cannot personally estimate" such a figure but that the program supplied information "that would not otherwise have been available."
Meanwhile, the same intelligence officer assures us that the searches are netting information "that would not otherwise have been available." Well, that's sure comforting. I mean, an unwarranted search of my home easily would disclose the contents of my sock drawer, which are not "otherwise" available. But there's no "otherwise unavailable" exception to the constitution, at least not in this context.
Stories of how restrained the administration has been carry little weight with me in any event. First, until the administration affirmatively states that the unbridled, extraconstitutional power to which it has arrogated itself has some limit, identifies that limit, and swears to observe it, I can only assume that their position on those tactics it has not yet employed are, in the administration's view, matters of grace and subject to change. Just like every other privilege -- for their are no rights -- in a government that aspires to dictatorship.
Furthermore, the administration has yet to offer a satisfactory explanation as to why it was both necessary and permissible to short circuit the process set forth by FISA. Very few legal intellectuals (those practicing as well as those in the academy) have accepted the administration's claim of inherent authority and even fewer seem to believe that the nebulous AUMF covers it. Prior declarations of war were not thought to cut so deep, and that's back when they were real declarations of war instead of blank checks for the use of force.
As for voting Bush out, I remind you that with swelling databases of "enemies" of the government, electoral politics is only going to get dirtier and less focused on what matters. And in any case, let me be clear: I wouldn't grant the authority Bush claims to a Democrat administration either. Would you? Sooner or later, that day will come, and whatever sort of authority Bush manages to wrestle away from the appropriate branches of government and secure for the executive will proceed upon inauguration to the next president, whoever that is. You will be reminded of your "unitary executive" loyalties the first time you bitch about a Democrat president who can't be bothered to come clean with the American people or operate within the clear dictates of the rule of law the President swears to uphold.
Posted by: moon at February 8, 2006 08:12 PM | PERMALINK