Wednesday, February 08, 2006

If Bush Had "Inherent Authority" For Warrantless Surveillance, Why Did Justice Department Seek Congressional Approval?

"Whatever the limits of the president’s authority given under the authorization of the use of military force and his inherent authority as commander in chief in a time of war, it clearly includes the electronic surveillance of the enemy," Attorney General Alberto Gonzales told Sen. Patrick Leahy (D-VT), while speaking (not under oath) on Monday to the Senate Judiciary Committee.

Assume for a moment that Gonzales is right, and that President Bush had the authority to do whatever was necessary to stop Al Qaeda from striking the U.S. again -- even circumventing existing law that says that the National Security Agency must obtain a warrant before conducting surveillance.

Then why did the Justice Department consider getting Congressional approval -- after the fact?

LEAHY: But here you also said, “We’ve had discussions with the Congress in the past, certain members of Congress, as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat. We were advised that that would be difficult, if not impossible.” That’s your statement. All right. Who told you that?

GONZALES: Senator, there was discussion with a bipartisan group of leaders in Congress, leaders of the Intel Committee, to talk about legislation. And the consensus was that obtaining such legislation — the legislative process is such that it could not be successfully accomplished without compromising…

LEAHY: When did they give you that advice?

GONZALES: Sir, that was some time in 2004.

LEAHY: Oh, three years later. You mean you’ve been doing this wiretapping for three years and then suddenly you come up here and say, “Oh, by the way, guys, could we have a little bit of authorization for this”? Is that what you’re saying?

But Gonzales had no answer to that, so instead he returned to his official, illogical spin line: "It's always been our position that the president has the authority, under the authorization to use military force and under the Constitution."

And the 2004 meeting with select members of Congress wasn't the only time the Justice Department considered legislation to allow warrantless surveillance.

A year earlier, the Justice Department considered including a provision to cover warrantless surveillance in "The Domestic Security Enhancement Act of 2003" -- but the legislation was later abandoned by the department.

''These proposals were drafted by junior staffers and never formally presented to the attorney general or the White House," department spokeswoman Tasia Scolinos told The Boston Globe last month.

And maybe Scolinos is telling the truth. But it would seem that at the very least, the seed was planted that maybe it'd be a good idea to legalize the concept of warrantless surveillance -- leading the Justice Department to meet with select members of Congress in 2004.

So again, why do you need legislation if you're not doing anything wrong?

''It's rather damning to their current view that they didn't need legislation," Timothy Edgar, a national security lawyer at the American Civil Liberties Union, told the Globe. ''Clearly the lawyers at the Justice Department, or some of them, felt that legislation was needed to allow the government to do what it was doing."

15 Comments:

Anonymous Jeffersons Ghost said...

good post
jabbs

12:30 PM  
Anonymous ProSense said...

So it's not just me. Gonzales' answers were ridiculous, as former President Carter and JABBS have proven.

12:30 PM  
Anonymous WinkyDink said...

It's that "INHERENT authority" that must be HAMMERED.

It's NOWHERE SPELLED OUT, so they can get away with ANYthing! And amorphous, so one day "inherent" includes warrantless wire-tapping, another day it means detention without reasonable cause, ....

12:31 PM  
Anonymous boobooday said...

"inherent authority" is whatever King George says it is. This phrase should send chills down the spines of every American.

Inherent authority.

And I believe Thomas Jefferson said the people have the inherent authority, and the responsibility, to remove such an abuser of power from office.

12:31 PM  
Anonymous MJDuncan1982 said...

Well it is spelled out in Article II. The Presidency is granted executive authority....not very explicit.

That is where the inherent authority comes from. The issue here is what are the parameters of that authority.

12:32 PM  
Anonymous rob of wilmington, del. said...

Gonzales' argument would make more sense if the Justice Department had been consistent -- but apparently, someone at Justice thought they needed to cover their asses.

12:33 PM  
Anonymous MJDuncan1982 said...

There are three typical "spheres" of Presidential authority under the Constitution.

The highest authority is when the Legislative branch gives authorization to the Executive.

The middle is when the Executive acts without Legislative input.

The lowest authority is when the Legislative branch explicitly withholds its authorization.

The resolution definitely places the authority of Bush today at the top level. However, even without the joint resolution, there is an argument that his actions are within the inherent authority granted to the Executive by the Constitution. They are just arguing in the alternative. "If Bush has this authority in the middle level then he definitely has it in today's circumstances..." That's the argument - interesting Constitutional debate regarding inherent powers of Executive. Unfortunately, there is a de facto war thereby invoking his Commander-in-Chief authority as well. Bush commands the greatest power possible under the Constitution today.

12:33 PM  
Blogger Brad said...

Unfortunately, the Republican Party is run like the Mafia. They're all too corrupt to expose one of their own, and the few dissenters (those who turn states' evidence in this allegory) like McCain used to and Specter is now doing, are hung out dry or smeared ("whacked").

There are only two ways to stop this culture of corruption and tyranny. One involves leading a Democratic revolution in Congress. The other we haven't done since 1776.

12:37 PM  
Anonymous Anonymous said...

Because the Justice Department isn't The President?

Is it just me or are there really obvious logical problems with this blog?

9:29 AM  
Anonymous Anonymous said...

There are some logical problems with your comment.

How about explaining what you mean, rather than making an off-the-cuff and barely understandable comment?

11:33 AM  
Anonymous Pia Savage said...

Remember when the war supposedly ended about six weeks after it began?

Obvioulsy this administration is doing many things wrong. Can’t and won’t pretend to understand anything that they’re doing

“Warrentlss surveilance” The First & Fourth Amendments and the USA government–something is very wrong here!

11:52 AM  
Anonymous liberal vet said...

FISA only turned down five applications for surveillance. The Bush administration is breaking the law and circumventing our rights as citizens. I question whether or not these intercepted messages always were between a foreign country and our own. I firmly believe the fascist swine are spying on innocent Americans and thus the cover up. LV

11:52 AM  
Anonymous Joe Snitty said...

The pattern goes like this, after the stonewalling finally fails: Make up some lame excuse, publish talking points, and wait for the pundits to start repeating the lame excuse until it sounds ‘truthy’.

Or, as I like to think of it: Rinse, Blather, Repeat.

11:52 AM  
Anonymous Opinionnation said...

Under the law Intel members must be informed

11:52 AM  
Anonymous windspike said...

I love the “It’s legal so we can do it,” gambit as well as the “other presidents have done it so we can too,” ploy. These folks more excuses for their transgressions than a three year old who just tossed sand in another kids eyes and doesn’t want the ensuing punishment.

11:53 AM  

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