Bob Herbert: Illegal and Inept

Illegal and Inept
Published: February 9, 2006

While testifying about the Bush administration’s warrantless eavesdropping program, Attorney General Alberto Gonzales was asked to explain how the program had been damaged by the disclosure of its existence in the press.

Senator Joseph Biden suggested that Al Qaeda operatives have most likely been aware for some time that the government is trying to intercept their phone calls.

Mr. Gonzales agreed. “You would assume that the enemy is presuming that we are engaged in some kind of surveillance,” he said. “But if they’re not reminded about it all the time in newspapers and in stories, they sometimes forget.”

Senator Biden managed to laugh. Probably to keep from crying. This was the attorney general of the United States speaking, yet another straight man for an administration that has raised governing to new heights of witlessness. Watching the Bush administration in action would be hilarious, if its ineptitude and brutally misguided policies didn’t end so often in needless suffering and sorrow.

The public should be aware of two important points about the president’s domestic spying program: it’s illegal, and it’s not catching terrorists.

If the program were legal, there is no chance so many Republicans would be upset about it. While questioning Mr. Gonzales at Monday’s Judiciary Committee hearing, Senator Lindsey Graham, a conservative Republican from South Carolina, assailed both of the rationales used by the administration to justify the program.

Referring to the administration’s repeated insistence that the Congressional resolution authorizing the use of force against Al Qaeda gave the president the power to bypass restrictions on domestic surveillance imposed by the Foreign Intelligence Surveillance Act, Senator Graham said:

“I’ll be the first to say, when I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”

Senator Graham then addressed the argument that the president has the inherent power under the Constitution to authorize the warrantless wiretapping. Such a view, said Senator Graham, would undermine the principle of checks and balances. “Taken to its logical conclusion,” he said, “it concerns me that it could basically neuter the Congress and weaken the courts.”

Moments later, he added, “And when the nation’s at war, I would argue, Mr. Attorney General, you need checks and balances more than ever.”

Other Republicans on the Judiciary Committee who expressed skepticism or voiced serious doubts about the program included Mike DeWine and Sam Brownback, and the chairman, Arlen Specter. “You think you’re right,” Senator Specter told Mr. Gonzales. “But there are a lot of people who think you’re wrong.”

Apart from the legal issues, it’s increasingly clear that the president’s program is contributing little if anything to the effort to protect Americans from Qaeda-type terrorism.

Senator Biden asked Mr. Gonzales whether the program had achieved any results. Mr. Gonzales said it had helped identify “would-be terrorists here in the United States.”

“Have we arrested those people?” asked Mr. Biden. “Have we arrested the people we’ve identified as terrorists in the United States?”

The attorney general’s reply left people shaking their heads and rubbing their eyes. “When we can use our law enforcement tools to go after the bad guys,” he said, “we do that.”

Senator Biden tried to push the issue, but Mr. Gonzales would not elaborate. Mr. Biden finally said: “Well, I hope we arrested them — if you identified them. I mean, it kind of worries me because you all talk about how you identify these people, and I’ve not heard anything about anybody being arrested.”

A clue to Mr. Gonzales’s reluctance to discuss the achievements of the president’s domestic spying program could be found on the front page of The Washington Post on Sunday. A long article about the program began as follows:

“Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.”

To laugh or to cry — that is the question as we contemplate three more years of this theater of the absurd known as the Bush administration.

The Discussion: 2 Comments

I read this at the Democratic Underground. Even from an administration that has redefined “hubris”, this takes the cake!

The former national director of the National Security Agency, in an appearance today before the National Press Club in Washington, D.C., today, appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution (…) despite his claims that he was actually something of an expert on it.

Here’s the exchange with a reporter (emphasis mine):

Q: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use –

HAYDEN: No, actually – the Fourth Amendment actually protects all of us against unreasonable search and seizure.

Q: But the –

HAYDEN: That’s what it says.

Q: But the measure is probable cause, I believe.

HAYDEN: The amendment says unreasonable search and seizure.

Q: But does it not say probable –

HAYDEN: No. The amendment says –

Q: The court standard, the legal standard –

HAYDEN: – unreasonable search and seizure.

Q: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.” And so what many people believe – and I’d like you to respond to this – is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

HAYDEN: Sure. (…) Just to be very clear – and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. (…) The constitutional standard is “reasonable.” And we believe – I am convinced that we are lawful because what it is we’re doing is reasonable.

So, which is it? “Probable cause”, or as the General says, just “reasonable belief”? Remember, according to General Hayden, if the NSA knows any amendment, it’s the Fourth!

Let’s take a look:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Could someome please send the National Director of the NSA a copy of the US Constitution? Maybe his ended up in Ollie North’s shredder.

Original story & transcript here:

February 9, 2006 @ 5:04 am | Comment

Scary as hell. Only in the Age of Bush.

February 9, 2006 @ 5:34 am | Comment

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