The Democrats took several positions at the hearings on the NSA intercept program. None of them was that the NSA should only be able to listen to terrorist phone conversations with U.S. citizens if it has first obtained a warrant, or that the administration’s substantive approach to surveillance of terrorist suspects should be other than what it is. Rather, the Democrats’ main position seemed to be that the president should have asked Congress to change FISA to accommodate the need for more technologically nimble approaches than the Democrats think FISA permits. Attorney General Gonzales’s position was that FISA, read together with the congresssional authorization of force (AUMF), permits the technologically nimble searches in question, making it unnecessary to seek new legislation. Moreover, the process of rewriting the law would likely have alerted terrorists to what the NSA was doing.
Another Democratic position was that Gonzales is a liar. Senator Feingold carried most of the water on this point, and it was he who persistently demanded that Gonzales testify under oath. Senator Leahy contributed by showing reporters the two video clips from Gonzales’s confirmation hearings that the Dems say prove him to be untruthful. The Democrats had hoped to play these clips during the hearing itself.
In one of the clips, Gonzales testified that the administration was not violating any criminal law regarding surveillance. In the other, he testified that the administration was not relying on a claim of presidential power to justify a refusal to follow any congressional act. Senator Feingold claimed that both of these statements were untruthful.
However, as the Attorney General explained, the first statement is false only if the administration was violating FISA. The administration’s position is that the NSA surveillance program does not violate FISA because FISA authorizes surveillance authorized by other statute, and the AUMF authorizes the warrantless surveillance performed by the NSA. This position is controversial, and in my view possibly incorrect, but it’s certainly colorable, finding support in the Supreme Court’s Hamdi decision. Thus, there’s no reason to suppose that the administration asserts it other than in good faith, and no reason to conclude that Gonzales was testifying falsely.
Similarly, Gonzales testified truthfully that the administration does not rely on a claim of presidential authority to justify a failure to adhere to FISA. Rather, the administration relies on its analysis of the interplay between FISA and AUMF to claim that it is adhering to FISA.
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