For several days now, I've been meaning to write about the Judiciary Committee's hearings on the NSA domestic surveillance program. I read the transcripts. A lot of it was incredibly dull -- much duller than I had expected -- since Gonzales seemed to stick remorselessly to a few single rules:
(a) When asked about the legal justification for the actual NSA program, repeat things the administration has already said.
(b) When asked any question about the legal justification for anything other than the actual NSA program, refuse to answer on the grounds that you have not done the requisite constitutional analysis. Do this even if the question involves a straightforward application of principles you have already enunciated.
(c) When asked any factual question, do not answer, on the grounds that it is an "operational detail", regardless of whether or not this description is even remotely plausible.
On the whole, that made for some pretty dull testimony. However, there were some interesting and alarming bits sprinkled here and there, and I wanted to write both about them and about the administration's truly alarming view of presidential power. Fortunately, Glenn Greenwald has written a great post about the latter topic. Below the fold, I'll copy some of it (though you should read the whole thing), and then use a few bits of Gonzales' testimony to illustrate.
Greenwald is laying out points that he thinks people should make when explaining the NSA program. His first is this:
"(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him."
Greenwald begins by saying that he thinks the issue is best described in this way, rather than as an issue about the rule of law. If we make it about the rule of law, the administration will be able to trot out its legal justifications, everyone will get confused, and the whole thing will just seem like an arcane legal disagreement. Far better, he says, to explain clearly what their legal theory is, and why it is genuinely radical and frightening. He then does exactly that.
"The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.
Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:
"In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force."
Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.
The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.
Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.
In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.
And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.
If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?
Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President."
Sorry for the extended quote: it was too good to cut. The rest is just as good. Read it all.
Greenwald said a lot of what I wanted to say about the radical nature of the administration's argument. I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.
I feel the same way about the NSA story. To me, this has nothing whatsoever to do with whether or not we want to know what al Qaeda members are saying to one another. Of course we do, and I can't imagine that the FISA court would be unwilling to issue a warrant in any such case. Nor does it have anything to do with my concern for the national defense: I can't see how getting warrants would have harmed us in any way, especially since it's possible to apply for them 72 hours after beginning surveillance. (By contrast, not getting warrants is putting cases against terrorists in jeopardy.) It's about whether or not the President has the right to order surveillance of US citizens without getting a warrant, without any sort of judicial oversight, and with only the barest gesture at informing Congress. (Informing eight members of Congress who are bound to complete secrecy, and who therefore have no way of making any of their concerns known to anyone, scarcely counts as allowing for Congressional oversight.)
Moreover, as Greenwald points out, it's about more than that: the administration's position allows for the use of any "war powers" against US citizens, at any time during the 'war on terror', which will probably not end in my lifetime. As Greenwald notes, "war powers" covers a lot: "they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing." He adds that this is not hypothetical, since the administration has actually used those powers, both in the NSA program and against Jose Padilla.
If these two examples don't do it for you, though, just ask yourself this: is there any reason to think that President Bush has not invoked what he takes to be his authority to use war powers against US citizens in any other way? Has he authorized a program to open citizens' mail, search their homes, install cameras and microphones in their living rooms and bedrooms, imprison them without notifying anyone, torture them, or kill them? Espionage is an "essential incident of war": has he decided to plant spies and agents provocateurs in Muslim seminaries and mosques, or for that matter in anti-war groups or labor unions? Has he decided that, since propaganda is an "essential incident of war", he can run disinformation programs within the United States, or subvert our democratic institutions? If he had done any of these things, how on earth would we know?
Well, we might try asking Alberto Gonzales. Luckily for us, this idea occurred to several Senators on the Judiciary Committee. Here are his answers (note: in reading the first passage, in which Gonzales claims that the President has not authorized anything that violates the law, bear in mind that Gonzales claims, in answers to questions by Durbin and Feingold, that when the President authorizes the use of any 'incident of war', even one that is prohibited by law, he does not violate that law, since the AUMF and the Constitution give him authority to authorize such actions legally):
"FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.
Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.
GONZALES: Senator, the president has not authorized any conduct that I'm aware of that is in contravention of law.
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?
GONZALES: Again, Senator, I'm not sure how to answer that question.
The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I'm sorry, your question is?
FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?
GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I'm here to...
FEINSTEIN: OK. That's fine.
FEINSTEIN: That's fine. I just want to ask some others. If you don't want to answer them, don't answer them.
GONZALES: Yes, ma'am.
FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?
GONZALES: Well, of course, Senator, that is not what is at issue here.
FEINSTEIN: I understand that.
GONZALES: This is not about law enforcement, it's about foreign intelligence.
FEINSTEIN: I'm asking a question. You choose not to answer it?
GONZALES: Yes, ma'am.
Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"?
FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?
GONZALES: Senator, let me respond to -- this will probably be my response to all your questions with these kind of hypotheticals.
And the question as to whether or not -- can Congress pass a statute that is in tension with a president's constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again...
FEINSTEIN: OK, that's fine. I don't want to argue with you." (cite)
"LEAHY: (...) Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?
I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?
GONZALES: Sir, I've been asked this question several times.
LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.
GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.
GONZALES: I will say that that is not what we are talking about here. That is not...
LEAHY: Are you doing that?
GONZALES: ... what the president has authorized.
LEAHY: Are you doing that?
GONZALES: I can't give you assurances. That is not what the president has authorized for this program.
LEAHY: Are you doing that? Are you doing that?
GONZALES: Senator, you're asking me again about operations, what are we doing.
LEAHY: Thank you."
"SCHUMER: (...) Now, here's the next question I have: Has the government done this? Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?
GONZALES: To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that.
SCHUMER: I don't know what that -- what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different.
So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.
GONZALES: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator.
SCHUMER: I'm not asking you about any operation. I'm not asking you how many times. I'm not asking you where...
GONZALES: You asked me has that been done.
GONZALES: Have we done something?
GONZALES: That is an operational question, in terms of how we're using capabilities.
SCHUMER: So you won't answer whether it is allowed and you won't answer whether it's been done.
I mean, isn't part of your -- in all due respect, as somebody who genuinely likes you, but isn't this part of your job, to answer a question like this?
GONZALES: Of course it is, Senator.
SCHUMER: But you're not answering it.
GONZALES: Well, I'm not saying that I will not answer the question.
GONZALES: I'm just not prepared to give you an answer at this time.
SCHUMER: OK. All right. Well, I'll accept.
And I have another one, and we can go through the same thing.
How about wiretaps? Under the legal theory, can the government, without ever going to a judge, wiretap purely domestic phone calls?
GONZALES: Again, Senator, give me the opportunity to think about that. But, of course, that is not what this program is...
SCHUMER: It's not. I understand. I'm asking because, under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what's going on now.
Let me just -- has the government done this? You can get back to me in writing.
GONZALES: Thank you, Senator.
SCHUMER: OK. And one other. Same issue. Placed a listening device -- has the government, without every going to a judge, placed a listening device inside an American home to listen to the conversations that go on there?
GONZALES: Same answer, Senator.
But now I have another one. And let's see if you give the same answer here.
GONZALES: All right.
SCHUMER: And that is: Under the legal theory, can the government, without going to a judge -- this is legal theory; I'm not asking you whether they do this -- monitor private calls of its political enemies, people not associated with terrorism but people who they don't like politically?
GONZALES: We're not going to do that. That's not going to happen.
As I read it, Gonzales just refuses to answer the question whether or not the President has authorized any other program that would be illegal were it not for the AUMF and his Article II powers. That is: Gonzales is not saying whether or not the President has decided to do things that would normally be illegal, on the grounds that he has the right to override laws when he decides that the "war on terror" requires it.
Think about that. Think about the range of things that the President might have decided to do on those grounds. Ask yourselves how, exactly, anyone would ever find out about these programs, or how any abuses they led to might be discovered and corrected.
Then ask yourself whether this is the country you always thought you lived in. As far as I'm concerned, the answer is: No. Obviously, no. And I want my country back.