This Administration Knows It's Breaking the Law

On February 6-7, Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee in an attempt to defend the President's secretive wiretapping program amidst bipartisan criticism. The New York Times broke the story in mid-December, and in the days and weeks leading up to the hearing, members of the committee provided Gonzales with many of the questions they planned to ask. A number of them dealt with the Administration's disregard for the process of obtaining warrants specified in the Foreign Intelligence Surveillance Act (FISA) of 1978 and their apparent lack of legal justification for such a program in the first place.

On the day of the hearing, the contentious tone was set within the first ten minutes with Chairman Arlen Specter's decision not to swear in the Attorney General on the witness stand, despite his apparent agreement to do so. After a subsequent 10-8 party line vote upholding his decision, Senator Specter remarked, "This is really not a very good way to begin this hearing." Agreed, Senator.

At a hearing where the Attorney General was sorely needed to present information about both the scope of the wiretaps and the President's arguments concerning the legality of the wiretapping program, Gonzales began by lecturing the Senators about the unconventional nature of terrorism and the dire need for the spying program, which he called "an early warning system designed for the 21st century."

In his opening remarks, he read two recent Al Queda statements before reminding the committee that "we remain a nation at war." Gonzales explained that because of this, he wouldn't allow questions about specific procedures involved in the program, a constant source of frustration for Democrats seeking clarification of Gonzales' evasive answers.

The first legal justification given by Gonzales for the program was the determination after careful study that it wasn't prohibited by either the Constitution or FISA. Unfortunately, FISA explicitly states that it "shall be the exclusive means by which electronic surveillance...and the interception of domestic wire, oral, and electronic communications may be conducted." Gonzales also took issue with what he called the "cumbersome and burdensome" requirements of FISA that slowed down intelligence agencies, completely failing to mention the emergency provision that allows wiretapping instantly as long as a warrant is obtained within a certain amount of time. In December of 2001, only months before beginning his wiretapping program by Executive Order, the President succeeded in his bid to increase the FISA provision length from 24 to 72 hours. Strangely enough, three months earlier the Patriot Act simplified the warrant process even further for terrorists, while retaining the FISA requirement of judicial approval. Why make changes to FISA if you're already ignoring it, unless you want to avoid suspicion?

During his careful study, Gonzales also chose to ignore Katz v. United States, a Supreme Court case from 1967 that extends the Fourth Amendment to protect individuals from exactly these kinds of warrantless wiretaps. Gonzales did look to the Supreme Court for guidance, however, when citing a previous Supreme Court ruling from 1955 which stated that the president's constitutional authorities included "the authority to use secretive means to collect intelligence necessary for the conduct of foreign affairs and military campaigns." Gonzales then attempted to establish a pattern of wiretapping by American presidents during wartime, beginning with Washington and conveniently ending before FISA was enacted with Roosevelt in WWII. When pressed later during questioning, Gonzales admitted that he knew of no court that had authorized the president to employ warrantless wiretaps after the passage of FISA.

Another point of contention came during the Attorney General's opening statement about a passage from the Authorization for Use of Military Force passed by Congress. His argument was that another legal justification for wiretapping was contained under the phrase "all necessary and appropriate force" specified within the document, which he described as a "very broadly worded authorization." In response to members of the committee who did not agree, Gonzales added that "We are a nation governed by written laws, not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president."Several members loudly denounced this claim, including Senator Russ Feingold, who said that "anyone in this body who would tell you otherwise either wasn't here at the time or isn't telling the truth."

The truth is, this Administration knows they are breaking the law. They knew when they made the changes to FISA and the Patriot Act. If they were so certain about this program's legality when it began, a newspaper wouldn't have had to break the story two years later. If they were so certain about this program's legality, they would not have Alberto Gonzales stacking flimsy arguments on top of one another, hoping the American people don't find the will to dig to the bottom. By the way, if you run out of arguments Mr. Gonzales, this one from Richard Nixon seems to sum up your Administration's position succinctly: "When the president does it, that means that it's not illegal.