Saturday, February 04, 2006

A Time For Answers on Domestic Spying

Time for Answers

On Monday, the Senate Judiciary Committee will hold the first congressional hearings on President Bush's warrantless domestic spying program. Attorney General Alberto Gonzales will be the lone witness. If his past statements are an indication, Gonzales will provide few details about the controversial program, hiding behind the guise of national security. Yet even if Gonzales continues to refuse to speak forthrightly and honestly about warrantless domestic spying, senators must at least press him to respond in detail to the facts and statements already in the public record. Senior administration officials -- including Gonzales -- have made demonstrably false statements about the program, sometimes under oath. Gonzales must be called to account. Below, some questions that he should answer:

WHY DID YOU TESTIFY UNDER OATH IN 2005 THAT WARRANTLESS WIRETAPPING WAS A 'HYPOTHETICAL SITUATION' THAT YOU WOULD NOT APPROVE OF? According to President Bush, Alberto Gonzales personally approved of the warrantless domestic spying program while serving as White House counsel. By circumventing the Foreign Intelligence Surveillance Act (FISA), which (along with Title III) are the "exclusive means by which electronic surveillance" can be conducted on U.S. persons, the program violates federal law. During his confirmation hearings for Attorney General in January 2005, Gonzales was asked by Sen. Russ Feingold (D-WI) about this precise issue: "I'm asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he's commander in chief? Does he -- does he have that power?" Despite having personally approved of just this set of events, Gonzales called Feingold's inquiry "sort of a hypothetical situation," then stated, "Senator, this president is not -- I -- it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."

As ThinkProgress first documented (which Newsweek notes this week), General Michael Hayden misled Congress about warrantless domestic surveillance in October 2002 while serving as NSA director. In sworn testimony before the Joint Select Intelligence Committee, Hayden stated that any surveillance of persons in the United States -- including surveillance related to known terrorists -- was done consistent with FISA. At the time of his statements, Hayden was fully aware of the presidential order to conduct warrantless domestic spying issued the previous year, but he stated false information anyway. Apparently, Hayden believed that he had been legally authorized to conduct the surveillance, but told Congress that he had no authority to do exactly what he was doing.

YOU HAVE CONTRADICTED GENERAL HAYDEN REGARDING THE RELATIONSHIP BETWEEN PROBABLE CAUSE AND REASONABLE BASIS IN RELATION TO FISA STANDARDS. WHO IS CORRECT? On January 23, Deputy Director of National Intelligence Michael Hayden affirmed that one of the functions of the NSA program was "to lower the standard from what they call for, which is basically probable cause to a reasonable basis," stating that the "trigger is quicker and a bit softer [for the NSA program] than it is for a FISA warrant." One day later, Alberto Gonzales contradicted Hayden's remarks. In an interview, Gonzales stated that the legal standard used for the NSA program was "equivalent to that required for complying with the Fourth Amendment ban on unreasonable searches and seizures." The reasonable basis standard, he said, "is essentially the same as the traditional Fourth Amendment probable cause standard."

WHY WOULD CONGRESS HAVE REFUSED TO LOWER FISA STANDARDS IF, AS YOU CHARGE, IT HAD ALREADY DONE SO? Alberto Gonzales has argued that "we believe [warrantless domestic spying] has been authorized by the Congress" via the September 2001 Authorization for Use of Military Force (AUMF), though he did concede that "signals intelligence is not mentioned in the authorization to use force." Yet, when asked whether the Bush administration should have asked Congress to amend FISA to allow greater flexibility, Gonzales stated, "We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get." In other words, as one analyst phrased it, "Congress would never have granted Bush permission to do something that, according to Gonzales, it had already granted him permission to do."

WAS PRESIDENT BUSH RIGHT WHEN HE SAID THE SUPREME COURT HAD AGREED THAT THE 2001 AUTHORIZATION OF FORCE SPECIFICALLY AUTHORIZED WARRANTLESS WIRETAPPING? On January 23, President Bush argued that the Congress' 2001 authorization of force, upheld by the Supreme Court in Hamdi v. Rumsfeld, establishes his authority to conduct warrantless domestic spying. But as the Congressional Research Service noted in its January 5 review of the administration's legal rationale for the NSA program, "the Court [in Hamdi] appears to have relied on a more limited interpretation of the scope of the AUMF than that which the Administration had asserted in its briefs." Moreover, in 1972, the Supreme Court ruled in U.S. v. U.S. District Court, 407 US 297 that warrantless domestic surveillance was unconstitutional. According to the Court, Fourth Amendment freedoms "cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute." Since the passage of FISA in 1978, "the Supreme Court has not touched this issue in the area of national security," according to William Banks, a national security expert at Syracuse Law School.

Both President Bush and Attorney General Gonzales have argued that the Justice Department has repeatedly approved the legality of warrantless domestic spying. Last week, Bush said of the program, "[I]t's legal. ... And we review it a lot, and we review not only at the Justice Department, but with a good legal staff inside NSA." Likewise, Gonzales said, "My Department - the Department of Justice - has carefully reviewed this program for legality." Nevertheless, the Bush administration is stonewalling bipartisan requests for its classified legal opinions on the program from members of the judiciary committee.


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