Gonzales Defies Logic and Plain English

Senator Arlen Spector (R-PA) was the last to question Attorney General Alberto Gonzales today about the NSA Warrantless Wiretapping program. At one point the conversation when like this.

Gonzales had all day been quoting a small part of FISA, Title 50 USC Section 1809 which says that "A person is guilty of an offense if he intentionally (1) engages in electronic surveillance under color of law except as authorized by statute." He said that "authorized by statute" means Congress anticipated later laws that would modify FISA and he says that on Sept 14, 2001 when Congress issued the Authorization To Use Miltary Force so Bush could go after those that caused 9/11, that meant that he had new authorization so that FISA didn't necessarily apply to all electronic surveillance programs.

Spector pointed out "when members of Congress heard about your contention that the resolution Authorizing The Use Of Force amended the [FISA], there was general shock."

Gonzales said "we've never asserted that FISA's been amended. We've always asserted that our interpretation of FISA which contemplates another statute, and we have that here in the Authorization To Use Force. That those complement each other. This is not a situation where FISA's been overwritten or FISA's been amended. That's never been our position.

Spector replied: "That just defies logic and plain English. FISA says squarely that you can't have electronic surveillance of any person without a warrant and you are saying when you tag on to the...as other statute which is in the penal provision that those words in FISA are no longer applicable, that there's been a later statutory resolution by Congress which changes that."

After this Spector went on at length, giving Gonzales a polite spanking. He quoted Justice Jackson's momentous decision in Youngstown Sheet & Tube v. Sawyer about executive power and said in this case, Congress stated it's position and the president's was squarely against so it "was at its lowest ebb". By the administration taking this narrow view it would force Congress to weigh every semi-colon and word carefully in the future and the executive might not get all the power he wanted or would at least be at it's lowest ebb. He implored Gonzales to take this to the entire Intelligence Committee or the FISC with all the info so they could make an informed decision, because the executive authority was not unlimited (Gonzales agreed) and because you can't decide this issue without all the facts, and these facts are sensitive and can't come out in other places. Again quoting Jackson, Spector said this was important because, "the equilibrium of our Constitutional system which is involved" and "security is very weighty but so are civil rights".