"Whatever the limits of the president’s authority given under the authorization of the use of military force
and his inherent authority as commander in chief in a time of war, it clearly includes the electronic surveillance of the enemy," Attorney General Alberto Gonzales
told Sen. Patrick Leahy (D-VT), while speaking (not under
oath) on Monday to the Senate Judiciary Committee.
Assume for a moment that Gonzales is right, and that President Bush had the authority to do whatever was necessary to stop Al Qaeda from striking the U.S. again -- even circumventing
existing law that says that
the National Security Agency must obtain a warrant before conducting surveillance.
Then why did the Justice Department consider getting Congressional approval -- <strong>after the fact?</strong>
LEAHY: But here you also said, “
We’ve had discussions with the Congress in the past, certain members of Congress, as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat. We were advised that that would be difficult, if not impossible.” That’s your statement. All right. Who told you that?
GONZALES:
Senator, there was discussion with a bipartisan group of leaders in Congress, leaders of the Intel Committee, to talk about legislation. And the consensus was that obtaining such legislation — the legislative process is such that it could not be successfully accomplished without compromising…
LEAHY: When did they give you that advice?
GONZALES: Sir, that was some time in
2004.
LEAHY:
Oh, three years later. You mean you’ve been doing this wiretapping for three years and then suddenly you come up here and say, “Oh, by the way, guys, could we have a little bit of authorization for this”? Is that what you’re saying?But Gonzales had no answer to that, so instead he returned to his official, illogical spin line: "It's always been our position that the president has the authority, under the authorization to use military force and under the Constitution."
And the 2004 meeting with select members of Congress wasn't the only time the Justice Department considered legislation to allow warrantless surveillance.
A year earlier, the Justice Department
considered including a provision to cover warrantless surveillance in "The Domestic Security Enhancement Act of 2003" -- but the legislation was later abandoned by the department.
''These proposals were drafted by junior staffers and never formally presented to the attorney general or the White House," department spokeswoman Tasia Scolinos told <em>The Boston Globe</em> last month.
And maybe Scolinos is telling the truth. But it would seem that at the very least, the seed was planted that maybe it'd be a good idea to legalize the concept of warrantless surveillance -- leading the Justice Department to meet with select members of Congress in 2004.
So again, why do you need legislation if you're not doing anything wrong?
''It's rather damning to their current view that they didn't need legislation," Timothy Edgar, a national security lawyer at the American Civil Liberties Union, told the
Globe.
''Clearly the lawyers at the Justice Department, or some of them, felt that legislation was needed to allow the government to do what it was doing."***
This item first appeared at
JABBS.