Warrentless NSA Wiretap Hearings

I've been watching the hearing on CSPAN today. Attorney General Alberto Gonzales has been testifying. To me, he's coming off as slimy. He's being extremely specific on language and not very forthcoming on answering questions. He also seems to be giving long answers, when even a yes or no would suffice, I'd guess to use up the Senator's time to ask questions. He refuses to say when he reached legal conclusions as that is an operational detail. When asked how laws that authorized the use of force could be interpreted to allow electronic surveillance, he refers to the Hamdi Case where the Supreme Court found that it allowed for detention, and refused to recognize a distinction.

I have to say I was impressed with Sen Lindsey Graham (R-SC) who said "All I’m saying is the inherent authority argument in its application to me seems to have no boundaries when it comes to executive decisions in a time of war, it deals the Congress and courts out, Mr. Attorney General." Pretty powerful stuff.

But the most impressive so far as been Sen Dick Durbin (D-IL). He started out commenting about the administration's description of FISA as a useful tool in the fight on terrorism. He pointed out it's not a tool for the executive branch but rather a limitation on it's powers. Describing it as a tool suggests you'll use it when you want and not when you don't want. He asked Gonzales about previous statements he made about the president's authority to ignore unconstitutional statutes. Gonzales answered that they weren't ignoring FISA but complying with it (by legally working around it). Durbin then pointed out that FISA says it's the is the exclusive means of conducting wiretaps. Gonzales points to 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" anticipates further statutes and says the Authorization To Use Military Force was that statute. Durbin said that the president enjoyed bipartisan support to fight terrorism, that the Patriot Act was passed 99-1, and Congress has authorized every penny asked for, so why didn't the administration ask for changes to FISA if it wasn't sufficient.

Gonzales had previously said he had conversations with Congress about could FISA be sufficiently amended and was advised by them that no it couldn't. Sen Patrick Leahy (D-VT) got Gonzales to admit that they didn't tell Congress until 2004 which was after they knew a newspaper was going to publish it. Gonzales said it was the Gang of Eight (bipartisan leadership) he spoke wand that it happened in 2004, three years after they had been doing this. And Leahy yelled at him that it was the Judiciary Committee that would have to write the law but he admits he didn't talk to the Judiciary Committee but still said that Congress advised him they couldn't do so. Leahy then said "Does this sound like a CYA on your part, it does to me."