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Monday, February 06, 2006

NSA Hearings, Part I

Am watching the NSA hearings on C-Span. Will try to summarize for as long as I am allowed to do so by the peanut. Ought to be an interesting day.

Sen. Pat Leahy is starting the day on fire. There has been an ongoing argument as to whether or not Alberto Gonzales ought to be sworn in as a witness -- Sen. Specter has played the "we have more votes than you do" partisan trump card, and Gonzales will not be sworn in for his testimony.

The Committee is proceeding with opening statements.

Leahy detailed history as to why the Nixon "enemies list" required that the FISA oversight be established, and other history of the government spying on Americans. That the FISA laws have been amended five times since 9/11 to enhance the Preznit's capabilities for surveillance -- and yet the President and his advisors saw fit to break the law anyway.


NOTE: Prepared statement can be found here. (Hat tip to reader Dru for the link.)

AG Gonzales begins his opening statement with the fear card -- and is given 20 minutes to give his opener. It's all fear, alla time thus far. "Use every lawful means to prevent a terrorist attack." He's comparing the NSA spying to a "scout team" sent ahead to do recon. But says that the Preznit is committed to protect civil liberties. (No explanation as to how breaking the law is consistent with this commitment, but I digress.) Gonzales tap dancing around the legal requirements of FISA -- not mentioning them at all in conjunction with the "program," and saying that the bi-partisan leadership of Congress has been informed for "years" and never asked that the program be discontinued "in the course of the briefings." (Well, that's shaving things quite fine, isn't it?)

Stating that the President has inherent authority under the Constitution without oversight from other branches of governemnt in terms of intelligence gathering. (Can you say unitary executive theory -- and that the Congress is irrelevent to this President? Here's hoping some Senatorial egos are a bit bruised by this blunt "screw you, and what are you going to do about it" phrasing.)

By its plain terms, FISA prohibits surveillance “except as authorized by statute.” The AG is using this phrasing to end-run the law by arguing that the AUMF supercedes the FISA laws (calling it a “safety valve.” I have to say that this tortured reading of Congressional intent by Yoo and others is creative – but ought to be a chilling moment for members of Congress.)

SPECTER QUESTIONING: Begins by asking whether the FISA court wasn’t a 24-hour court, that was available for approval at any time. Gonzales danced around this answer. And says he has no idea why Judge Robertson resigned from FISA court. Specter makes point as to what assurances AG can give committee that only al qaeda is involved in surveillance. (Getting to that issue of trust.) Gonzales passing off the answer to the intelligence folks, and not giving a definitive answer of his own knowledge. Not exactly confidence inspiring answer, I must say. Specter pressures Gonzales to say on the record that he has no objection to Ashcroft testifying before the committee. Specter then asks about legislation being obtained – Gonzales says that they decided not to ask for legislation to make actions legal because they determined that legislation could not be obtained without disclosing the nature of the program (i.e. we couldn’t get Congress to act without exposing the fact that we had been breaking the law).

LEAHY QUESTIONING: Did you reach the conclusion that you could conduct warrantless spying prior to the AUMF on 9/14/01 – are you aware that others in the Administration came to that conclusion? Gonz.: Not aware. Are you aware of others coming to that conclusion prior to the Preznit signing the resolution on 9/18/01? Gonz.: Stalling. (Man, Leahy is pissed this morning. Good questions.) We came to conclusion that President had the authority – says short period of time after AUMF. (Am going to find exact transcript on this segment because it is great questioning and I’m thinking Leahy has something in his pocket on this.) Leahy hits Gonz. with the fact that he was WH Counsel at the time – and wants to know about when these deliberations took place. Brings up Patriot Act and amendments to FISA, and its relationship to this NSA program. Leahy directs him to find out answers for his afternoon appearance today. Is there anything to stop you from wiretapping without a warrant for any reason? Gonz. says it is a narrow program, subject to 4 amendment. Leahy stops him and says you are picking and choosing what you are subject to – where in AUMF there is specific language that authorizes you to ignore FISA? Gonz. – no, can’t show you specific language. Leahy: If you don’t like FISA, why not request changes? References Hamdi. Gonz. Getting flustered in his response – clearly not used to be questioned on this. Leahy: can you search mail, e-mail, bank records, whatever, without a warrant, under your interpretation, of Americans? Gonz.: Dodging and not answering. Not going to answer the question. Filibustering by talking about wild speculation – not going on here, he says, only focused on international communication – but not answering question as to whether these acts are being done.

HATCH QUESTIONING: Begins by lecturing about potential Constitutional issues and providing cover for Preznit. (WH has coordinated Hatch’s questioning, because Gonz. has prepared answers ready for each question as Hatch tosses it out.) Hatch asking about case law which authorizes intelligence gathering for foreign intelligence – no mention of Youngstown or any of that line of cases, though, on restrictions for intelligence gathering within the US. (RH: Hatch is such a political tool. The Republican line is clearly going to be “constitutional inherent power” versus rule of law – and the fact that they are ignoring an entire line of case law (a long line, in fact) that deals with liberty and freedom is appalling.)

KENNEDY QUESTIONING: Talking about phone companies and other communications companies, and linking in substantial discussions as to how members of the Administration had questions about legality and whether Congress would approve of what WH wanted to do. Talking about how other Administration’s have dealt with these questions. Did you check with any outside Constitutional authorities who spoke with you about how these actions might have been inadvisable or unconstitutional?

BREAK until 11:15 am ET.