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Attorney General Alberto Gonzales has proved to be one of the Bush administration’s most reliable witnesses: polite, soft-spoken — and opaque. So in the run-up to his appearance before the Senate Judiciary Committee on Monday to talk about the National Security Agency’s warrantless wiretap program, few were expecting any revelations. “I expect Gonzales will stonewall,” said Sen. Dianne Feinstein (D-Calif.). “Exceptionally evasive” is how Wisconsin Democrat Sen. Russell Feingold characterized Gonzales’ previous appearances before the panel. But Feinstein and Feingold, the only two Democrats to sit on both the Senate Judiciary and Intelligence committees, aren’t really complaining. At least the Judiciary Committee is holding a hearing. And Gonzales is showing up. Compare that to the Intelligence Committee, which along with its House counterpart has jurisdiction over the NSA. There, Chairman Pat Roberts (R-Kan.) had to be pressed and prodded for weeks into scheduling a meeting to vote on whether to authorize an investigation into the program. Roberts finally did set a date, Feb. 16, for a business meeting on the issue, but not before he and committee Vice Chairman John Rockefeller IV (D-W.Va.) had exchanged increasingly testy letters.
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“For you to suggest, as you have done on numerous occasions, that any request for oversight is a political ploy is a disservice to the important work of the Committee,” Rockefeller wrote on Jan 25. “We should have scheduled Committee hearings on this program long ago.” The controversial program has been in effect at least since President George W. Bush signed an executive order in 2002 authorizing the NSA to conduct warrantless phone taps on the international communications of individuals, including U.S. citizens, believed to be linked to al Qaeda. It was first revealed in a Dec. 16, 2005, article in The New York Times. Many legal scholars believe that the 1978 Foreign Intelligence Surveillance Act flatly forbids such wiretaps without a warrant unless there is a specific statute explicitly authorizing them. Others say there is such a statute: the Authorization for the Use of Military Force, which Congress passed just after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon. That law authorizes the use of “all necessary and appropriate force” to stop those responsible for 9/11. Such force, the argument goes, includes almost any action, like wiretapping, that could reasonably help prevent another terrorist attack. And there’s the president’s so-called inherent constitutional authority to collect foreign intelligence, although the extent of that authority is also subject to different interpretations. From a legal standpoint, there are respected scholars on both sides of the issue. But the Bush administration does not have to win over a community of legal scholars; its target is the voting public. “The average man in the street is more like me,” said Intelligence Committee member Sen. Trent Lott (R-Miss.), in a Senate hallway. ” �If it’s for the security of America, please tap my phone.’ “ Indeed, the administration has launched a full-throated offensive in the past few weeks, framing the program as an issue of national security, not domestic spying. “It was not about domestic surveillance, it was about dealing with the international terrorism threat in the most effective and agile way possible,” National Intelligence Director John Negroponte pointedly told Rockefeller during the Intelligence Committee’s annual hearing last week on national security threats to the United States. And although the hearing was not designed to deal with the surveillance debate, committee Democrats did not let the opportunity pass to pepper witnesses with questions about the program. Those questioned included Deputy Director of National Intelligence Gen. Michael Hayden, FBI Director Robert Mueller, CIA head Porter Goss, and Defense Intelligence Agency Director Gen. Michael Maples. This prompted Roberts to growl at Oregon Democrat Sen. Ron Wyden: “Keep your questions posted to the threat against our nation, [not] the threats others seem to think are posed by the panel.” So far, Roberts and Rockefeller are the only two members of the Intelligence panel to have been regularly briefed on the surveillance program, along with the two top members of the House Intelligence Committee and the Republican and Democratic leaders of the House and Senate. Roberts, says one GOP congressional aide, “feels pretty strongly the committee has adequately handled oversight, considering the sensitivity of the program and critical nature of what it’s about.”The overriding issue here is politics — the Democrats are constantly looking for something to get the president on,” the aide continues. That, of course, is not how all Republicans see it, including Senate Judiciary Committee Chairman Arlen Specter (Pa.), who began speaking out against the program the day after it was revealed. “There is no doubt that this is inappropriate,” he said on Dec. 17. When Specter opens his hearings on Feb. 6, Gonzales will be the only witness in a hearing that will probably not last past lunch. “I think Specter has a legitimate concern about the program,” says Judiciary Committee Democrat Sen. Joseph Biden (Del.). “But I called Arlen and I said, �One day of hearings is not sufficient; it will be a joke.’ “ Specter says he’s planning a further round of hearings on the subject in March. Still, this is the Senate Judiciary Committee, and it has no operational authority over the program. What it does have is a preponderance of lawyers who “ideally would like to hear in more detail how the Justice Department and White House made the legal determination that this was OK to do,” notes a Judiciary Committee staffer. “A nice academic symposium on the separation of powers,” says the GOP congressional aide, only half in jest. That worries people such as Suzanne Spaulding, a former counsel on both the House and Senate Intelligence committees who has worked under a Democrat — House Intelligence Committee Vice Chairman Jane Harman (Calif.) — and Specter, who was chairman of the Senate Intelligence Committee in the mid-1990s. “I’m afraid the Democrats are going to get down in the weeds, talking about the AUMF and the Youngstown Steel Seizure Case,” she says, referring to the 1952 Supreme Court case that outlined three levels of presidential power and that is relevant to presidential claims of authority for the NSA surveillance. “What they should frame it as is that all this legal gobbledygook comes down to one thing: the president asserting an unprecedented authority to pick and choose which laws he will abide by. “They’re not just tapping your phone, they’re reading your e-mail,” Spaulding continues. “But it’s not whether we want the government to be doing what they’re doing. The issue is not electronic surveillance. The issue is the president saying he is above the law.”


T.R. Goldman can be contacted at [email protected].

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