What did Sen. Feingold know and when did he know it?

Washington Post reporters Dan Eggen and Amy Goldstein continue their effort to assist congressional Democrats in smearing Attorney General Gonzales by questioning his truthfulness in another front-page story. The only news on this front from the past few days is the confirmation that Gonzales testified truthfully about which surveillance was the subject to his visit to John Ashcroft at the hospital. As John has noted, even the New York Times had the decency this weekend to acknowledge that Gonzales has been vindicated on this point. But the Post lacks such decency. In fact, Eggen and Goldstein include this matter in their compendium of alleged misstatements by the Attorney General.
The lead alleged misstatement in today’s piece is not a misstatement at all, though I’m sure Senator Feingold appreciates the Post’s efforts to make it seem like one. During the Attorney General’s confirmation hearing in January 2005, Feingold pressed Gonzales about whether the Bush administration would ever allow wiretapping of U.S. citizens without warrants. Gonzales answered: “It is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.”
The Post attempts to paint this testimony as deceptive, since the administration had been listening in on calls from terrorists in the United States for three years. But Gonzales’s testimony is problematic only if (1) this action was in contravention of U.S. criminal statutes or (2) Gonzales should have tipped off the terrorists that we were obtaining intelligence by listening in their calls. As to the first point, the Post does not claim, much less show, that any U.S. criminal statute prohibited this surveillance. And the notion that Gonzales should have publicly disclosed secret surveillance on al Qaeda is ludicrous.
Keep in mind that the administration had advised key congressional leaders in both parties (including the heads and ranking members of the intelligence committees) about the NSA intercept program. In this context, Senator Feingold’s claim that Gonzales deceived Congress, a claim Eggen and Goldstein essentially parrot, is itself a gross distortion.
It also raises interesting questions about what Feingold knew and when he knew it. It’s not unlikely that Feingold knew or believed that the administration was engaging in warrantless wiretapping of terrorist calls. After all, the administration had disclosed this fact to members of the intelligence committee on which Feingold serves. Thus, Feingold’s questioning may well have been an attempt to accomplish one of two things: lay the groundwork for a future claim that Gonzales is dishonest (i.e. the claim now being made) or force Gonzales to disclose secrets and thereby render useless a presumably valuable weapon against terrorism. If so, this would represent more evidence that congressional Dems put their partisan interests ahead of fighting terrorism. Perhaps we should appoint a special prosecutor to look into this matter.
Fortunately, Gonzales was able to avoid Feingold’s trap, though Feingold and the Washington Post choose to pretend he did not.
UPDATE: Feingold did not become a member of the Senate Intelligence Committee until 2006, and thus was not on the committee in 2005 when he questioned Gonzales during the confirmation hearing. This doesn’t exclude the possibility that Feingold was setting the trap I described, and that possibility still strikes me as likely.
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