Monday, February 06, 2006

Testify... admin word for obfuscate.

What follows I believe will be a rather lengthy tome. I am now reading the transcript of the testimony of attorney general Alberto Gonzalez before the senate intelligence committee regarding the NSA spy program. This post will be a point by point refutation of the legaleze and b.s. proffered by the attorney general. I have a couple of hours before I'm off the computer so I may stop mid transcript and miss something later in the testimony. Also I really am feeling logy and just plain mad after yesterdays game, but I won't let it throw me off!

We begin by going straight to the core of the administrations legal reasoning that justifies the NSA spy program.
GONZALES: Senator, I think that, in reading that provision you just cited, you have to consider Section 109.

Section 109 contemplates an additional authorization by the Congress. Congress provided that additional authorization when it authorized the use of military force following the attacks of 9/11.
The senate majority leader when the authorization to use force passed congress in Sept. 2001 was ex senator Tom Daschle. Senator Daschle says:
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
It is clear that the administration tried to insert language into the bill to allow them to use war powers inside the United States and that congress refused this request. When considering congressional intent of the authorization this must be taken into consideration. When the attorney general asserts this as the additional authorization envisioned under FISA, he plainly does not heed congressional intent.

Here is a line of questioning from senator Patrick Leahy that should raise a few eyebrows:
[Leahy]Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?
I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?

GONZALES: Sir, I've been asked this question several times.

LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.

GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.

GONZALES: I will say that that is not what we are talking about here. That is not...

LEAHY: Are you doing that?

GONZALES: ... what the president has authorized.

LEAHY: Are you doing that?

GONZALES: I can't give you assurances. That is not what the president has authorized for this program.
The attorney general of the United States of America can not assure us that the administration has not authorized spying on purely domestic communication. It seems this angle should be followed up on. I mean it seems pretty straight forward. The answer we would like to have is that the president is not constitutionally permitted to do so, and he would not disregard the constitution. Of course such a statement from an administration toady would be met with disbelief, but would it not be the proper way of answering this question?

Here is Republican senator Orin Hatch going to the old canard that president Clinton's administration did it too.
HATCH: Well, it's important, General, to bring out that President Clinton's administration ordered several warrantless searches on the home and property of a domestic spy, Aldrich Ames.
That's true, isn't it?

GONZALES: That is correct, sir.

HATCH: That was a warrantless set of searches.

GONZALES: That is correct, sir.

HATCH: And the Clinton administration also authorized the warrantless search of the Mississippi home of a suspected terrorist financier. Is that correct?

GONZALES: I think that is correct, sir.

HATCH: The Clinton Justice Department authorized these searches because it was the judgment of Deputy Attorney General Jamie Gorelick, somebody I have great admiration for, that -- and let me quote her. It has been quoted before, but I think it's worth quoting it again. This is the deputy attorney general of the United States in the Clinton administration.

The president, quote, she said, "The president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." Now this is against the domestic people.

"And the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

You're aware of that quote.

GONZALES: I am aware of it, yes, sir.
And here is the rebuttal to this specious line of reasoning provided by Democratic senator Diane Feinstein:
FEINSTEIN: Thank you, Mr. Chairman.

Mr. Chairman, I want to respond to you on the Jamie Gorelick/Aldrich Ames situation...

HATCH: Sure.

FEINSTEIN: ... because, in fact, the law was changed directly after the Aldrich Ames case.

I called -- because I heard you say this before -- so I called Jamie Gorelick and I asked her to put this in writing. She has done so and I have it before me now.

And she points out in this letter that her '94 testimony arose in context of congressional consideration of an extension of FISA to cover physical searches.

And at the time, FISA covered only electronic surveillance such as wiretaps.

In 1993, the attorney general had authorized foreign intelligence physical searches in the investigation of Aldrich Ames, whose counsel thereafter raised legal challenges to those searches.

FEINSTEIN: Point: There was no law at that time.

And then she goes on to say that the Clinton administration believed, quote, "It would be better if there were congressional authorization and judicial oversight of such searches. My testimony did not address inherent presidential authority to conduct electronic surveillance which was already covered by FISA."
So the Republican talking point that Clinton did it too is only half right. There was no law that covered that circumstance, and once the need for oversight became clear the administration (being concerned about constitutional questions and acting lawfully) approached congress for guidance. Where as the current administration (not being concerned about constitutional questions and acting unlawfully) sees no need to observe the mandate of the FISA law regarding spying on Americans. They simply did not care to abide by the law so they chose to ignore it. Indeed when consideration of the possible expanding of the FISA statute to include the actions taken by this administration was floated to congressional leadership the administration declined to do so because, as the attorney general puts it:
GONZALES: There was a consensus that pursuing the legislative process would result likely in compromising the program.
So it is ok for the terrorists to know that we can secretly search their personal effects before attaining a FISA warrant, subpoena library, medical, financial and internet use records, and a whole host of other counterterrorism actions known to anyone who cares to read the text of the Patriot Act but to clarify the constitutionality of warrantless spying on American citizens is giving the terrorists too much information? Besides which the knowledge by the terrorists that they were being spied upon is something everyone assumes they already knew... including Alberto himself as he lets us know with this interchange between himself and senator Joe Biden:
BIDEN: General, how has this revelation damaged the program?

I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls.

I mean, I'm a little confused. How did it damage this?

GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.

And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.

But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget. (LAUGHTER)
Honestly, I do not believe the attorney general was intending to tell a joke here. Yes you would assume the enemy is presuming we are spying on them. Still... the congress can not be approached to give the president this authority? When the congress attempts to give the president the authority they are rebuffed at the time by the administration questioning the constitutionality of the proposed revision. So were they lying about the reason to dismiss the authority then, or are they lying now?

Senator Biden then asks if any sort of criminal proceeding has developed from this program.
[Biden]Let me ask you this question. Do you know -- and you may not -- do you know how many of these wiretaps and/or e-mail intercepts have resulted in anything?


BIDEN: Any criminal referral.

GONZALES: Without getting into specifics, Senator, I can say that the director of the FBI said this has been a very valuable program. And it has helped identify would-be terrorists here in the United States, it has helped identify individuals providing material support for terrorists.
We all know that the director of the FBI is a political appointee. Odd how his rosy outlook on the spy program tips does not mesh with the stories by the rank and file fbi agents who were flooded with a deluge of worthless leads due to this program:
"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism – case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."


In bureau field offices, the NSA material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more "calls to Pizza Hut," said one official who supervised field agents.

Well it is about time for me to bugger off and I've already written too much. I just hope reading through all this does not take too much time from whichever federale is keeping an eye on me... Hate to cause you too much work bud!

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