Informed Speculation

Transcript links here…

We’ll start the second part with good ol’ Teddy Kennedy, who actually makes some good points:

…[Y]ou make a very strong case in your presentation here about the authority in which you are acting on. You talk about the authorization by the Congress, you talk about inherent power, you talk about the president having the authority and the power to do this.

But there is, of course, a very significant legal opinion to the contrary. There was within your department very important, thoughtful lawyers that were in the Department of Justice who questioned it, constitutional authorities that have questioned it.

So we’re taking, really, a risk, I think, with national security, which I think is unwise.

We’re sending the wrong message to those that are on the front lines of the NSA that maybe someday they may actually be prosecuted, criminally or civilly. We’re sending a message to the courts that perhaps the materials that we’re going to take from — let me just say from eavesdropping or signal intelligence may not be used in the court, again prosecuting Al Qaida, people we really want to go after, because it wasn’t done legally.

We’re sending a message to the telephone companies that they may be under assault and attack as well. There are already cases now, brought by individuals against the telephone companies.

So we have to get it right. Because if we don’t get it right, we’re going to find that we have paid a very harsh price on it.

Some of those toughest, meanest and cruelest members of Al Qaida may be able to use illegality in the court system to escape justice. Maybe or maybe not, but why take a chance?

Now Grassley, who frankly engages in a bit of partisan theatrics (pretty sad when Teddy Kennedy is the classy one by comparison – with anyone):

I’m going to start with something that’s just peripheral to the issues we’re on, but it does deal with our national security, and it’s the leak of this information to the New York Times. And I’m greatly concerned about this. And these leaks could be putting our nation’s safety into serious jeopardy.

Could you tell us what is being done to investigate who leaked this national security information and whether the Department of Justice will initiate a prosecution of an individual leaking the information?

GONZALES: Senator, we have confirmed the department has initiated an investigation into possible crimes here. And consistent with department practice, I’m not going to talk much further about an ongoing investigation.

Obviously, we have to look at the evidence, and if the evidence shows that a crime has been committed, then obviously we’ll have to make a decision about moving forward with a prosecution.

And I don’t blame you for this, but I don’t hear as much about public outcry about this leak as I did about Valerie Plame and the White House disclosures of her — or presumed disclosures of her identify of a CIA agent. And to me that’s a two-bit nothing compared to this sort of issue that we have before us of this information being leaked to the press.

Next up, Joe “I Love The Sound Of My Own Voice” Biden, who gets caught on the losing end of an uppercut:

BIDEN: …[I]f, in fact, the only people being wiretapped or e-mails read are Al Qaida operatives contacting American citizens, I don’t think you’re going to find anybody in America saying, “Oh, my God, don’t do that.”

What’s really at stake here is the administration’s made assertions in the past where their credibility has somewhat been questioned. And so it’s not merely the constitutional reach you have; it is: What is actually happening, what is actually going on?

I’m going to focus on that first, if I may.

How will we know, General, when this war it over?

GONZALES: I presume the straightforward answer, Senator, is that when Al Qaida is destroyed and it no longer poses a threat to the United States.

Whenever that may be, we know it’s not today. We know we’re still at war today. We know we’ll probably be at war still tomorrow. And so we know it still continues today.

BIDEN: The truth is, there is no definition of when we’re going to know whether we’ve won, because Al Qaida, as the president points out, has mutated into many other organizations that are not directly dealing with bin Laden and are free agents themselves.

BIDEN: Is that correct?

GONZALES: It is certainly true that there are a number of terrorist groups who share many of the same objectives of Al Qaida in terms of destroying America.

BIDEN: So as long as any of them are there, I assume you would assert you have this plenary authority.

GONZALES: Well, Senator, obviously if Congress were to take some kind of action, and say the president no longer has the authority to engage in electronic surveillance of the enemy, then I think that would put us into the third part of Justice Jackson’s three-part test, and that would present a much harder question as to whether or not the president has the authority.

You may think Gonzales has just issued a dare to Congress: take away the President’s authority – explicitly – and see what happens to you at the polls.

You’d be right….

Senator Kyl gets a good soundbite in:

I think it’s very interesting how the argument over this program has evolved in the last several weeks from initial concerns about the program itself now to some very different questions.

And I think it’s a good evolution because I doubt, if we polled the members of this committee today, that there would be anybody who would vote against the conduct of this particular kind of surveillance.

There was then the suggestion that while the program is good, it’s being conducted illegally. That was the charge, and I would submit a very serious charge, that the ranking member made earlier in this remarks.

It seems to me that a little humility is called for by the members of this committee, especially before we accuse the president of committing a crime, which is what illegal activity is.

If our hearings with now-Justices Alito and Roberts demonstrated anything, I think it is that there are a lot of smart lawyers in Washington, D.C., other than those who are sitting here on this committee.

And in that regard, I appreciate the last couple of rounds of questions that were asked by Senators Kennedy, Biden and Grassley, because they got more into specifics about how we might have better oversight.

Senator Kohl gets a grudging admission that the Administration might consider after-the-fact review by the FISA courts for the wiretaps used in the President’s program:

KOHL: Mr. Attorney General, if applying to the secret FISA Court is too burdensome, then would you agree to after-the-fact review by the FISA Court and by Congress of the wiretaps used specifically in this program?

At least in this way, we can ensure, going forward, that the authority will never be abused by this or any other president.

GONZALES: Sir, obviously, we want to ensure that there are no abuses. The president has said we’re happy to listen to your ideas about legislation.

There is concern, however, that, of course, the legislative process may result — first of all, of course, we believe the president already has the authority and legislation is not necessary here.

But the legislative process may result in attempted restrictions upon the president’s inherent constitutional authority and he may not be able to protect the country in the way that he believes he has the authority to do under the Constitution.

And then finally, of course, the legislative process is one where it is pretty difficult to keep certain information confidential. Again, because if you’re talking about amending FISA, there are many aspects of FISA that make sense to me; they work well.

Again, if you’re talking about domestic surveillance during peacetime, I think having the kind of restrictions that are in FISA make all the sense in the world. And so you’re probably talking about a very narrowly tailored, focused amendment of FISA.

And, again, I’m not the expert on legislation, but we’re talking potentially a very narrow focused amendment of FISA. And I think I’m concerned that that process will inform our enemies about what we’re doing here and how we’re doing it.

But subject to those concerns, of course, as the president said, we’re happy to listen to your ideas.

KOHL: After-the-fact review by the FISA Court; you don’t have any problem with that?

GONZALES: Again, Senator, we’re happy to consider it.

Dewine again tries to get a commitment to submit to more oversight:

What if Congress passed a law which just excluded FISA from any electronic surveillance of international communications where one party to the communications is a member of or affiliated with Al Qaida or a related terrorist group; and further, if we went on and provided that there would be normal oversight by both the House and the Senate Intelligence Committee, periodically that the administration would report to the Intelligence Committees on the progress of that program?

DEWINE: We, obviously, have the ability within the committee to keep such things classified. We do it all the time.

What would be your reaction to that? Is that something that would be possible from your point of view?

GONZALES: Well, Senator, I’ll repeat what the president has said, and that is to the extent that Congress wants to suggest legislation, obviously, we’ll listen to your ideas.

I’ve already, in response to an earlier question, talked about some of the concerns that we have. Obviously, generally, most concerns can be addressed in one way or the other, and if they can legitimately be concerned, then, obviously, we’d listen and consider your ideas.

We’ll end part two with Feinstein, who asks the AG if he’s lying through his teeth:

If the president determined that a truthful answer to questions posed by the Congress to you, including the questions I ask here today, would hinder his ability to function as commander in chief, does the authorization for use of military force or his asserted plenary powers authorize you to provide false or misleading answers to such questions?

GONZALES: Absolutely not, Senator. Of course not.

FEINSTEIN: Thank you. I just asked the question. A yes or no…

GONZALES: Nothing would excuse false statements before the Congress.

Feinstein continues her disgraceful performance with a whole slew of irrelevant hypotheticals, but Gonzales is having none of it:

FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.

Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.

GONZALES: Senator, the president has not authorized any conduct that I’m aware of that is in contravention of law.

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?

GONZALES: Again, Senator, I’m not sure how to answer that question.

The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I’m sorry, your question is?

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we’re discussing, the NSA surveillance program?

GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I’m here to…

FEINSTEIN: OK. That’s fine.

GONZALES: OK.

FEINSTEIN: That’s fine. I just want to ask some others. If you don’t want to answer them, don’t answer them.

GONZALES: Yes, ma’am.

FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?

GONZALES: Well, of course, Senator, that is not what is at issue here.

FEINSTEIN: I understand that.

GONZALES: This is not about law enforcement, it’s about foreign intelligence.

FEINSTEIN: I’m asking a question. You choose not to answer it?

GONZALES: Yes, ma’am.

FEINSTEIN: OK.

Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that “no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media”?

FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?

GONZALES: Senator, let me respond to — this will probably be my response to all your questions with these kind of hypotheticals.

And the question as to whether or not — can Congress pass a statute that is in tension with a president’s constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again…

We’ll wrap this series up sometime tomorrow…