Give Me Liberty or Give Me Gonzales

We're about to lose focus on the key issue behind a Bush administration scandal. Again.

Discussion of the Valerie Plame affair largely centered on what White House official had leaked a CIA agent's identity and covert status, who had authorized the leak, and who was lying or refusing to talk to protect whoever it was who authorized the leak and leaked it. What really mattered--the extent to which the White House had gone to preserve the Niger Uranium hoax and save its justification for invading Iraq--got lost in the hoopla.

Similarly, the ado over whether Attorney General Alberto Gonzales committed perjury in front of Congress is masking a more vital concern: we still don't know what Bush is up to with his National Security Agency surveillance program and if there is any congressional or judiciary oversight of it whatsoever.

Don't get me wrong. I'd like to see 'Fredo swing in the breeze as much as anybody. To a great extent, he's as responsibility as anybody for Mr. Bush's disregard of our Constitution's Bill of Rights, but impeaching or punishing Gonzales, by itself, won't restore those rights to us.

The Baby and the Bathwater

Because of the way the Senate Judiciary Committee hearings have gone, or the way the news media have reported them, the U.S. attorney firings and the NSA surveillance program have become a single issue to much of the public that's paying a dollop of attention to the Gonzales story. Gonzales may or may not have purposely misled the Committee on both subjects, but they're really two distinctly different issues. Regardless of what political agenda was behind the trash canning of nine federal prosecutors, it was legal for the Bush administration to trash can them.

Whether any part of the NSA domestic surveillance program is legal or constitutional is highly questionable.

Gonzales's defenders claim that his evasiveness in answering questions about the surveillance program were in keeping with proper security procedures because while the domestic phone monitoring aspect of the program had been acknowledged by President Bush, the data mining part of the program had not been. That's a mighty weak argument. The data mining piece was openly discussed when the domestic spying program story broke in December of 2005. Everybody who matters--including the bad guys--already knows the NSA is conducting electronic data mining, and they know it's doing so without any regard of the Constitutional rights of U.S. citizens.

Between September 11, 2001 and December 2005 when the New York Times broke the NSA story, Mr. Bush, by his own admission, had authorized intercepts of domestic phone conversations without seeking warrants from the special court established by the Foreign Intelligence Surveillance Act (FISA) in 1978 more than 30 times. He further announced that he intended "to do so for as long as our nation faces a continuing threat from al Qaeda and related groups."

On August 17, 2006, Detroit District Court Judge Anna Diggs Taylor ruled in ACLU vs. NSA that the surveillance program was illegal under FISA and the First and Fourth Amendments of the Constitution. In July of that year, the 6th Circuit Court of Appeals reversed Judge Diggs's ruling. The Circuit Court did not rule on the legality of the surveillance program, but said that the ACLU and other plaintiffs did not have legal standing in the case because they could not demonstrate that they themselves had been direct targets of the surveillance.

Several prominent members of Congress exerted pressure on the administration to bring the surveillance program back under the auspices of the FISA court's control, and in January 2007 Gonzales told Congress in writing that "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court." We now know that the administration considers the "Terrorist Surveillance Program" as the title of the phone intercept program, and regards the data-mining program as a separate entity. Hence, the data-mining program never was and still is not under any controls outside of the executive branch, nor is any other NSA domestic surveillance project that may or may not exist.

What's more, we're not really certain what Gonzales meant when he wrote that the domestic phone intercept program was once again "subject to the approval" of the FISA court. Back in the old days before presidents publicly claimed to have absolute powers, the FISA law allowed that in emergency situations, the Justice Department could file for wiretap warrants retroactively as long as they did so within 72 hours. I have yet to hear an explanation from the administration or its water carriers why they it was too difficult or presented a national security risk to have to apply for a warrant three days after the fact of breaking in on a U.S. citizen's phone conversation, but I also have yet to hear if the 72 hour requirement is actually back in place. For all we know, 'Fredo is now operating under a presidential interpretation of the FISA law that says the NSA can tap a citizen's phone for up to 72 hours before it has to apply for a warrant, and if the agency doesn't want to go to a judge at that point, all it has to do is stop listening for five or ten minutes before it turns the tap back on for 72 hours.

The Bush administration would like it a whole bunch if Congress just passed a law that said it was okay for them to tap Americans' phones without permission or oversight from anybody, and there's a distinct possibility that Congress is getting ready to do just that. Such a law would most arguably be unconstitutional, but that wouldn't keep it from going into effect. In fact, such a law might never be challenged. The 6th Circuit Court set the precedent that says only persons who can demonstrate they have been surveillance targets have legal standing, and since the program is top secret, no one can ever demonstrate that they have been surveillance targets.

Again, nothing would make me happier than watching Satan give 'Fredo a slow turn on a barbecue spit, but I'm afraid that by pursuing contempt charges or impeachment proceedings against Gonzales, the Democrats will just wind up with Grade A Large "partisan politics" eggs all over their faces and the rest of us will end up with our First and Fourth amendment rights permanently revoked by a stroke of Mr. Bush's pen.