Tuesday, February 07, 2006

The Gonzales Hearings

I watched just about all of the Judiciary Committee hearings [full transcript starts here] on wiretapping yesterday (thank goodness for multi-tasking), and have to say I was much more impressed with the senators this time around than I was with the Alito hearings. For the most part, they kept the speechifying to a minimum and actually asked questions of AGAG.

Like Howie Kurtz, I was somewhat disappointed in the lack of t.v. coverage of these hearings; thankfully C-SPAN aired them gavel to gavel. I can understand the cable news stations' decision not to air the hearings in full after the mind-crushing monotony of the SCOTUS confirmations, but yesterday had a very different feel about it. This stems, perhaps, from the fact that basically everybody knew how the Roberts and Alito hearings were going to end up, while on this wiretapping business, that's still very, very much up in the air.

While I didn't entirely understand the kerfluffle at the start of the hearing about swearing Gonzales in (if he'd agreed to be sworn, why not just do it?), I'm glad the Committee members were able to (for the most part) put that behind them and move forward. I was impressed with the questions asked by Senators Specter and Graham, as well as some of the Democrats (Feinstein, Feingold, Leahy) - and I have to say, I continue to find the Administration's justification for this program just doesn't hold up.

Gonzales said yesterday (as the president and he have said before) that the program is necessary because FISA won't suffice. Why won't it suffice, particularly with the 72-hour safety valve? AGAG's response to that question seemed to boil down to "paperwork." Several times he went through the procedure needed to get a FISA warrant, and what I heard was "we don't like paperwork." Fair enough - there's got to be a way to expedite those procedures through an amendment to FISA. But the Administration didn't ask for that, they just went around the law.

AGAG says that the legal basis for the program is found in the use of force resolution passed by Congress right after 9/11 ... but when it is suggested that Congress certainly didn't mean to overrule FISA in that resolution, the Administration then resorts to "Oh, well, then the president has the power to do it anyway under the Constitution's commander-in-chief provision." Senator Graham and others tried to get at the heart of this issue yesterday by asking just what else this president thinks he can get around by hauling out the commander-in-chief card, but of course AGAG wouldn't bite at those.

As Joe Gandelman notes over at TMV, a rift seems to be opening in the GOP over this issue. There are those who will defend the president (whether because they agree with him or because he's the leader of the Republican Party), and there are those (Specter, Graham, me) who will continue to demand answers to the big questions about this program regardless of the fact that the president happens to be a Republican.

I've said it before and I'll say it again: we all support every legal measure to go after the terrorists who would do us harm. But reliance on nebulous justifications for warrantless searches just doesn't cut the mustard, and no amount of word-mincing is going to make it right. I hope that skeptics of this program will continue to speak out, and that the Administration will resume a course of action better suited to our constitutional system.

Other centrist voices on this topic: Mighty Middle on "trusting" the government; NeoMugwump with a great simple synopsis of the tension at hand; Rafique Tucker at Centerfield on creating a consensus; Stygius on AGAG's "red herring."


At 1:49 PM, Anonymous Anonymous said...

Gonzales said yesterday (as the president and he have said before) that the program is necessary because FISA won't suffice.
I have a question: if FISA doesn't suffice, why are they still using it? During the time in question (from 9/11 to now) they've submitted thousands of wiretap requests to the FISA court: what is so different from the FISA-approved wiretaps to the NSA-unapproved wiretaps?

At 10:42 AM, Anonymous Anonymous said...

The person being tapped, NSA can wiretap anyone in another country without a warrent. If the tap leads to a US citizen then FISA should be done. The trouble is that a [wiretapped] terrorist from Yeman contacts a US arab, who is now being tapped? What if the US arab uses a Saudi website to post terrorist messages? The experts say that FISA needs to be updated to be more about the person being watched and less on the technology used for communication. Bottom line is that Bush should have asked for this clarification or revision, he would have it and we would not be in this mess.


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