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Monday, February 06, 2006

NSA Hearings, Part II

Still watching NSA hearings on C-Span.

GRASSLEY QUESTIONING: Blah blah blah inherent Constitutional powers blah blah blah. (RH: According to Sen. Grassley, outing a CIA NOC is a two-bit nothing compared to the leak of this illegal NSA domestic spying. Nice. I’m sure our covert agents in the field appreciate the support from a Senator.) Gonzales argues that these actions are different from those in Youngstown – but doesn’t give factual information to distinguish, so I hope that someone delves into this much further. Relies on Sen. Roberts opinion submitted to the Committee – Specter admitting letter from Roberts into the committee record.

BIDEN QUESTIONING: Points out that Roberts is not planning on holding any hearings for Intelligence Committee, which Biden says is bordering on abdication of Congressional duty. Biden starts by saying that the Administration lacks credibility because their past actions have raised questions about truthfulness. How will we know when this war is over? AG: When al qaeda is destroyed – which is not today. Biden: So, you’re going to argue for continual authority to do whatever the Administration feels is necessary for so long as you feel there is a threat – which under your terms is pretty much forever, considering how al qaeda has morphed into a multi-group organization. Biden then asks if President is truly interested in fully protecting the public, why not listen to domestic calls – is it public relations or because you see that as unconstitutional? Gonzales dodges answer, pretty much, by not really giving rationale other than talking about balancing rights versus protection. How many people in NSA doing this monitoring? AG: I don’t know. (Fobbing off the responsibility for this on NSA and intel personnel. Again.) Then discussion about minimization requirements and FISA – Gonzales stammering again, discussing that they are classified, and Biden points out that this information has not been shared with the Intelligence Committee beyond perhaps the “Gang of 8" and Biden wants to know why not? Biden: Can you assure us that you, Gonzales, that you personally know the details of this and that no one is being eavesdropped on in the US under this program? AG: No, I can’t give you that assurance. (So, basically, we’re doing some domestic spying. Suck it up.) Biden takes a swipe at the Intelligence Committee and Roberts that oversight is absolutely necessary for this program.

Leahy adds in objections contained in a letter from Bruce Fein and others to this NSA program.

KYL QUESTIONING: Says some humility is called for in the Committee. (RH: Coming from Kyl, that’s amusing.) Kyl trying to paint FISA as ineffective – and the AG actually comes back with an argument that FISA is effective, but only in peacetime. In wartime, apparently, under the Bush Administration, no laws need apply. (RH: Good heavens, Kyl is raising the fear mongering question while discussing the need for constitutional review. Someone must be up for re-election this year in a state where Western libertarians don’t like governmental intrusion on their liberties.) AG says he has not been present at all briefings with members of Congress, but that there have been questions raised by some members, and will take Kyl’s concerns back to Administration. (RH: Wow, mighty nice of him. *snerk*)

KOHL QUESTIONING: Was there any debate within the DoJ? There was a great deal of debate, but Gonzales is poo-pooing any questions about constitutionality and trying to downplay those questions. Back to discussing amending FISA – saying we don’t need to do so for peacetime surveillance purposes – so they are staking out the argument as “wartime versus peacetime.” (RH: Guess the Constitution just goes shit out the window during wartime.) Kohl: Anything the )Preznit can’t do during time of war? AG argues that Preznit is acting within the law based on the AUMF. What is done with the information collected? AG dodges the question, and says he can’t talk about specifics but the information is collected, retained and disseminated to protect the privacy interests. Kohl: So, you are saying the information is retained? AG: Um, I’m not answering that. But we’re going to publicly give lip service to privacy interests, because it sounds good on camera. Kohl: I’m sorry, but I don’t believe that you aren’t gathering information on al qaeda in this country. AG: We’re not admitting to doing that publicly – and we are worried about what the public reaction would be were we to admit doing so publicly. (Ok, sure, I’m paraphrasing, but I’ll link to the transcript and see if that isn’t what he was saying.)

We have a screamer in the back of the room, who is now leaving. Sen. Sessions has now responded to the protester on the record by saying that Gonzales is not a fascist. Nice of him to do so.

DEWINE QUESTIONING: President is stronger in foreign relations and intelligence matters when Congress has oversight and approval. Need Intelligence Committee oversight. (RH: This is a building theme – Republicans in the Judiciary Committee appear to want to fob off oversight onto intelligence, since they could do the hearings in secret presumably and then bury the information gathered, presumably.) DeWine quotes concerns from Mueller in 2004 – talks about having current information that there is a back-log of mechanical problems within FISA and at DoJ with this process – can you explain? Congress cannot tolerate a backlog of applications – and you need to request more resources from Congress if you need them. AG fobs this off on his staff, who are “experts.” (RH: What the hell – this is so indicative of this Administration. The buck always stops on someone else’s desk. Did he prepare for these hearings or not?) AG says that there is some small delay at times on some applications, and that is why the President decided to just break the law instead of requesting amendments to the law. (RH: Oh, that’s reassuring. And DeWine doesn’t even bother to follow up on this.)

AG goes back to a point for Sen. Kohl. Domestic to domestic – to the extent that they can engage al qaeda domestically, they are doing so. Going back to CYA to be certain that the public perception is that big, bad Bushie is fighting the terrorists (even if he has to trample on the law to do so).

FEINSTEIN QUESTIONING: This is not about continuing surveillance – we all agree that this is necessary. What this is about is that this Administration has said that it does not have to follow the law. And any discussion that the Intelligence Committee knows about this is a flat out lie, because they have not been briefed on the details. The President lied to the American public that wiretapping requires a warrant, do you agree? AG says the Preznit was being honest. Splitting hairs. (RH: Anyone for a discussion on what the meaning of “warrants” is? We are now splitting the hairs based on whether the Preznit was discussing “roving wiretaps” as opposed to warrants. Lovely.) Feinstein says that Hayden told her that they had fully briefed the Intelligence Committee on these programs. Says full Committee has not been notified of this before public reporting. AG says nothing excuses false statements before Congress. DiFi: You have advanced the theory that the Preznit’s power is unchecked during war, and that he is not bound by law – the AUMF provides authority or, if that doesn’t apply, the Constitution gives him unlimited power. What do you have to say about Daschle’s statement that he expressly refused to include authority on this – and that the Preznit went ahead with the violation of FISA law anyway? AG says authority to use military force gives the Preznit a blank check to do whatever he deems necessary. DiFi calls hi8m on his FISA “escape hatch” argument – says you have 15 day provision and 72 hours. AG says section 109 “except as authorized by statute.” (RH: I’ll take a look at this when I get time.) AG: Um...and if you don’t agree with this, we believe this is a fairly possible ruling, but maybe we can find something else that will work. (They are relying on a conflicting interpretation legal hairsplitting argument.) DiFi asks about other programs where the Preznit has invoked that authority? AG not comfortable answering. Can Preznit suspend posse comitatus? Not comfortable answering. Can Preznit suspend law prohibiting otherwise illegal propaganda? AG dodges answer. (RH: DiFi is really getting to the heart of the constitutional questions on this. Good on her. Slippery slope is absolutely right here.) DiFi: Has any Supreme Court case since FISA held that the President can wiretap Americans without a warrant? AG: says in re sealed case from 2002. Acknowledges that the Court did not address that specific issue, though.

SESSIONS QUESTIONING: Gosh, Mr. AG, I sure do like you. And the media has been mean. Anyone who questions what you are doing is unpatriotic. And I sure do think you are a truthful fellow – anyone who questions your truthiness is unpatriotic. Gosh, I sure am grateful that the Preznit doesn’t have to follow the laws, because thinking about terrorists makes me almost pee my pants in terror and our Constitution can’t possibly hold a candle to how much I need to feel protected. (RH: Okay, sure, I’m paraphrasing. But I have to do so, otherwise my brain might explode having to listen to Sessions whiny-ass, nasal voice and his constant need to kiss the Adminsitration’s ass without doing any critical, independent thought.) And gosh, doesn’t the Hamdi case affirm how powerful the Preznit is? Listening in on a citizen without a warrant sure is less intrusive than throwing him into a cell with no trial, isn’t it? (RH: Oh yeah, that’s a winner of an argument. The Preznit is breaking a lesser law – good one.) Oh good heavens, now we get to the warrantless physical searches by Clinton – which, again, were not covered by FISA at the time that they were conducted AND when Congress brought those searches under the auspices of FISA, the Clinton Administration did not object to that. Could he make a more factually disengenuous argument?

Break for lunch. Will resume at 1:45 pm ET.

NSA Hearings, Part I