Informed Speculation

You can find links to the transcript here…

Senator Specter, on the purpose of the hearing:

The Foreign Intelligence Surveillance Act was passed in 1978, and has a forceful and blanket prohibition against any electronic surveillance without a court order. That law was signed by President Carter with a signing statement that that was the exclusive way for electronic surveillance.

There is beyond, a constitutional issue as to whether the president has inherent powers under Article 2 of the Constitution to undertake a program of this sort. If the president has constitutional authority, that trumps and supersedes the statute. The Constitution is the fundamental law of the country, and a statute cannot be inconsistent with a constitutional provision.

We will be examining the administration’s contention that, notwithstanding the Foreign Intelligence Surveillance Act, there is statutory authority for what the president has done by virtue of the resolution of Congress authorizing the use of force against the terrorists.

I have already expressed myself as being skeptical of that interpretation. But I believe the administration is entitled to a full and fair opportunity to advance their legal case on that important issue.

We will be examining with the attorney general the generalized rules of statutory interpretation. One of them is that a repeal by implication is disfavored and that the specific governs the generalizations.

And in the Foreign Intelligence Surveillance Act, you have the specific prohibition; contrasted with the generalized authority under the resolution for the authorization for the use of force.

Leahy forgets his meds:

My concern is when we see peaceful Quakers being spied upon, where we see babies and nuns who can’t fly on airplanes because they’re on a terrorist watch list put together by your government.

What the…?

Gonzales hints at known unknowns:

The president has described the terrorist surveillance program in response to certain leaks, and my discussion in this open forum must be limited to those facts the president has publicly confirmed: nothing more.

Many operational details of our intelligence activities remain classified and unknown to our enemy. And it is vital that they remain so.

Gonzales trots out the caveat emptor argument:

A few members of Congress have suggested that they personally did not intend the force resolution to authorize the electronic surveillance of the enemy, Al Qaida.

But we are a nation governed by written laws, not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president.

And in this case those plain words could not be clearer.

The words contained in the force resolution do not limit the president to employing certain tactics against Al Qaida. Instead, they authorize the use of all necessary and appropriate force.

Nor does the force resolution require the president to fight Al Qaida only in foreign countries. The preamble to the force resolution acknowledges the continuing threat, quote, “at home and abroad.”

Congress passed the force resolution in response to a threat that emerged from within our own borders. Plainly, Congress expected the president to address that threat and to do so with all necessary and appropriate force.

A more clear answer from Gonzales on why new legislation was not sought (administration opponents won’t like it, but he’s got a real point):

…[T]the consensus was in a meeting that legislation could not be obtained without compromising the program; i.e., disclosing the existence of the program, how it operated and thereby effectively killing the program.

Interesting bit of back and forth between Leahy and Gonzales:

LEAHY: Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black-bag jobs?

And under the idea that you don’t have much time to go through what you described as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that of Americans?

GONZALES: Sir, I’ve tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.

LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.

GONZALES: There is all kinds of wild speculation about…

LEAHY: Did it authorize it?

SPECTER: Let him finish.

GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we’re actually doing. And I’m not going to get into a discussion, Senator, about…

LEAHY: Mr. Attorney General, you’re not answering my question. I’m not asking you what the president authorized.

Does this law — you’re the chief law enforcement officer of the country — does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?

GONZALES: Senator, I think that, again, that is not what is going on here.

We’re only focused on international communications where one part of the communication is Al Qaida. That’s what this program is all about.

LEAHY: You haven’t answered my question.

Leahy is, of course, completely over the top (black-bag jobs – please!), but does seem the AG was trying to weasel out of the opening mail question, doesn’t it?

We’ll close part one of the highlights with another interesting exchange on FISA, with Orrin Hatch:

GONZALES: And I want to emphasize, Senator, this is not a case of where we’re saying FISA — we’re overriding FISA or we’re ignoring FISA. Quite the contrary: We’re interpreting the authorization to use military force as a statutory grant.

HATCH: You use FISA all the time, don’t you?

GONZALES: FISA is an extremely important tool in fighting the war on terror.

GONZALES: And I know today there’s going to be some discussion about whether or not we should amend FISA.

I don’t know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime.

And so when you’re talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable.

And so that’s one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I’m concerned will jeopardize this program.

HATCH: They may even encroach on the inherent powers of the president, right?

GONZALES: Yes, sir.

More later…