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U.S. Attorney General Alberto Gonzales spoke at Georgetown University Law Center on Jan. 24 to defend the Bush administration’s secret program of conducting domestic wiretaps without judicial oversight. Part of a public relations blitz to “reframe” the phone taps as a “terrorist surveillance program,” the attorney general’s recent address was engrossing as political drama but utterly unconvincing as legal argument. While another audience might have greeted the speech with a standing ovation, a group of more than 20 Georgetown students chose instead to stand up for the law. As the attorney general spoke, we stood silently with our backs turned. The tortured interpretation of the U.S. Constitution offered by Gonzales in his remarks-adopting a view of presidential power unprecedented in its scope and unlimited in its application-could not be taken sitting down. Our education as law students offers a basic approach to making legal arguments. Georgetown Law professor David Cole described it succinctly: “If you can’t argue the law, argue the facts; if you can’t argue the facts, argue the law.” The Bush administration is pursuing a third way: “If you can’t argue either the facts or the law,” Cole said, “apparently, the solution is to go on a public relations offensive and make it a political issue.” Arguing politics instead of law The White House has done exactly that. In their speeches, the president, the director of the National Security Agency and the attorney general have attempted to shift the debate on warrantless wiretapping. They have taken it from the forum of law-with its reliance on precedent, honest debate and clear argument-to the battlefield of politics, with its dependence on sound bites, spin and choreographed confusion. Gonzales’ trip to Georgetown is a textbook example. Although he serves as the highest-ranking lawyer in the executive branch, Gonzales treated the legal aspects of his speech almost as an afterthought. Squeezed between invocations of the Sept. 11, 2001, attacks and ominous warnings about future terrorist threats were the same arguments that legal scholars and commentators have found unconvincing since the wiretapping story broke. He took no questions from the audience of lawyers and students nor stayed to listen to the legal experts with whom he shared the stage. In short, the attorney general used the law school as a convenient backdrop to make a political case for breaking the law. If he expected a pliant audience, he was mistaken. Given this administration’s apparent desire to define the legality of its actions based on what it can get away with, and obedience to the law as a function of polling data and the needs of election campaigns, we felt compelled to quite literally turn our backs on his attempt to further divorce governing from law. Unfortunately, the White House appears set to continue down this dangerous path. In a recent speech, presidential aide Karl Rove made it clear that he believes the domestic spying program is a “political winner” for Republicans, notwithstanding its dubious constitutionality. Stay away from the legal debate, he recently advised members of the Republican National Committee, and frame the issue of domestic surveillance as part of the war on terror. Adherence to the rule of law, it seems, is a low priority for the political operative. For law students, however, the rule of law means a great deal. The law is our future, and its maintenance is our duty. We have the privilege of studying the Constitution and laws of our nation on a daily basis. While it may be a beginner’s pride, we take to heart the founding fathers’ declaration that ours is a government of laws, and not of men. The coming months will test this fundamental claim. President Bush, when delivering the State of the Union address to Congress, predictably continued to assert the legality of his decision to conduct domestic wiretaps without judicial oversight. Gonzales proved similarly unrepentant before the Senate Judiciary Committee on Feb. 6, pointedly refusing to answer a number of questions posed by skeptical senators, including several Republicans. Senators Arlen Specter, R-Pa.; Lindsey Graham-R-S.C.; and Sam Brownback, R-Kan., all expressed doubts about the administration’s legal justifications, with Specter noting that much of the attorney general’s argument “defies logic and plain English.” Whether these legal doubts or political motives drive further inquiries into the wiretapping program is a test for Congress. Its members-on both sides of the aisle-face a choice: applaud the accretion of executive power or stand up for the law. Alex Little and Devon Chaffee are students at Georgetown University Law Center in Washington. They can be reached via e-mail at [email protected].

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