Did Gonzales Lie to Congress?
[update below]
The hearings on the Bush administration's warrantless surveillance program begin next week, but already there are allegations that Attorney General Alberto Gonzales lied to Congress. According to an article in Tuesday's Washington Post, Senator Russ Feingold has written a letter to Gonzales demanding an explanation for statements Gonzales made during his confirmation hearings last year.
Just add it to the list of questions for next week's hearings. If the Senators on the Judiciary Committee do their job, Gonzales is not going to enjoy the hearings very much.
UPDATE: Here is the text of the relevant exchange between Feingold and Gonzales (courtesy of the Heretik):
FEINGOLD: Thank you.
Let me switch to a subject that’s come up a lot here today. In the August 2002 memorandum, the Justice Department concludes that the president, as commander in chief, may authorize interrogations that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it’s authorized by the president. This is the claim, essentially, that the president is above the law so long as he is acting in the interest of national security. The December 30 rewrite of the August memorandum does not repudiate this view. It simply says the issue is irrelevant because the president has prohibited torture.
Today, in response to questions on this subject, you have been unwilling to repudiate this legal theory. You’ve danced around the question of it, but as I understand your answer so far you have said there may be a situation where the president would believe a statute is unconstitutional and would therefore refuse to comply with it, but would abide by a court’s decision on its constitutionality. You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal actions.
So what I want to do is press you on that because I think perhaps you’ve misunderstood the question, and it’s an important one. It goes to a very basic principle of the country: that no one, not even the president of the United States, is above the law. Of course, the president is entitled to assert that an act of Congress is unconstitutional.
This president did so, for example, with respect to some portions of our McCain-Feingold bill when he signed it. But his Justice Department defended the law in court, as it is bound to do with every law duly enacted by the Congress. And his campaign and his party complied with the law while a court challenge was pending. No one asserted that the president has the power to ignore a law that he thought was unconstitutional.
The question here is what is your view regarding the president’s constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional. It’s about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative, and my colleagues and I would like your answer on that today. And I also would like you to answer this: does the president, in your opinion, have the authority acting as commander in chief to authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?
MR. GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it’s been rejected by the executive branch. I categorically reject it. And in addition to that, as I’ve said repeatedly today, this administration does not engage in torture and will not condone torture. And so, what you really are — what we’re really discussing is a hypothetical situation that –
SEN. FEINGOLD: I — Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he — does he have that power?
MR. GONZALES: Senator, I — you — in my judgment, you phrase it sort of a hypothetical situation. I would have to know what — what is the — what is the national interest that the president may have to consider. What I’m saying is, it is impossible to me, based upon the question as you’ve presented it to me, to answer that question. I can say, is that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.
SEN. FEINGOLD: Well, that sounds to me like the president still remains above the law.
MR. GONZALES: No, sir.
SEN. FEINGOLD: Again, you know, if this is something where — where it — you take a good look at it, you give a presumption that the president ought to follow the law, that — you know, that’s — to me, that’s not good enough under our system of government.
MR. GONZALES: Senator, if I might respond to that, the president is not above the law. Of course he’s not above the law. But he has an obligation, too. He takes an oath as well. And if Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now, I think that that would be –
SEN. FEINGOLD: I recognize that, and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.
MR. GONZALES: Senator, this president is not — I — it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
SEN. FEINGOLD: Finally, will you commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it?
MR. GONZALES: I will to advise the Congress as soon as I reasonably can, yes, sir.
There don't appear to be any outright lies here; just a lot of lawyerly dodges. Gonzales will no doubt claim that the secret briefings to the so-called Gang of Eight amounted "advising Congress" (despite the fact that these briefings were apparently legally insufficient and it's questionable whether the administration actually made it clear in these briefings that FISA was being circumvented). The part about Feingold's question being too hypothetical to answer was certainly a dodge, particularly given the specificity of Feingold's question and the fact that Gonzales damn well knew that the administration wasn't complying with the laws Feingold mentioned. There's nothing hypothetical about a program that, at that point, had been in operation for over three years. Nor is it clear why giving a truthful answer about a general legal question would have in anyway compromised the program. Gonzales didn't have to go into specifics. He could have simply laid out an abbreviated version of the Article II argument made by the DoJ in its white paper.
This is just one more example of this administration insulting and humiliating Congress. If Congress allows this to stand, its relevance and power as an institution will be forever diminished.
The hearings on the Bush administration's warrantless surveillance program begin next week, but already there are allegations that Attorney General Alberto Gonzales lied to Congress. According to an article in Tuesday's Washington Post, Senator Russ Feingold has written a letter to Gonzales demanding an explanation for statements Gonzales made during his confirmation hearings last year.
In a letter to the attorney general yesterday,
Feingold demanded to know why Gonzales
dismissed the senator's question about
warrantless eavesdropping as a "hypothetical
situation" during a Senate Judiciary
Committee hearing in January 2005. At the
hearing, Feingold asked Gonzales where the
president's authority ends and whether
Gonzales believed the president could, for
example, act in contravention of existing
criminal laws and spy on U.S. citizens
without a warrant.
Gonzales said that it was impossible to
answer such a hypothetical question but that
it was "not the policy or the agenda of this
president" to authorize actions that conflict
with existing law. He added that he would
hope to alert Congress if the president ever
chose to authorize warrantless surveillance,
according to a transcript of the hearing. . . .
"It now appears that the Attorney General
was not being straight with the Judiciary
Committee and he has some explaining to do,"
Feingold said in a statement yesterday.
Just add it to the list of questions for next week's hearings. If the Senators on the Judiciary Committee do their job, Gonzales is not going to enjoy the hearings very much.
UPDATE: Here is the text of the relevant exchange between Feingold and Gonzales (courtesy of the Heretik):
FEINGOLD: Thank you.
Let me switch to a subject that’s come up a lot here today. In the August 2002 memorandum, the Justice Department concludes that the president, as commander in chief, may authorize interrogations that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it’s authorized by the president. This is the claim, essentially, that the president is above the law so long as he is acting in the interest of national security. The December 30 rewrite of the August memorandum does not repudiate this view. It simply says the issue is irrelevant because the president has prohibited torture.
Today, in response to questions on this subject, you have been unwilling to repudiate this legal theory. You’ve danced around the question of it, but as I understand your answer so far you have said there may be a situation where the president would believe a statute is unconstitutional and would therefore refuse to comply with it, but would abide by a court’s decision on its constitutionality. You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal actions.
So what I want to do is press you on that because I think perhaps you’ve misunderstood the question, and it’s an important one. It goes to a very basic principle of the country: that no one, not even the president of the United States, is above the law. Of course, the president is entitled to assert that an act of Congress is unconstitutional.
This president did so, for example, with respect to some portions of our McCain-Feingold bill when he signed it. But his Justice Department defended the law in court, as it is bound to do with every law duly enacted by the Congress. And his campaign and his party complied with the law while a court challenge was pending. No one asserted that the president has the power to ignore a law that he thought was unconstitutional.
The question here is what is your view regarding the president’s constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional. It’s about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative, and my colleagues and I would like your answer on that today. And I also would like you to answer this: does the president, in your opinion, have the authority acting as commander in chief to authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?
MR. GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it’s been rejected by the executive branch. I categorically reject it. And in addition to that, as I’ve said repeatedly today, this administration does not engage in torture and will not condone torture. And so, what you really are — what we’re really discussing is a hypothetical situation that –
SEN. FEINGOLD: I — Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he — does he have that power?
MR. GONZALES: Senator, I — you — in my judgment, you phrase it sort of a hypothetical situation. I would have to know what — what is the — what is the national interest that the president may have to consider. What I’m saying is, it is impossible to me, based upon the question as you’ve presented it to me, to answer that question. I can say, is that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.
SEN. FEINGOLD: Well, that sounds to me like the president still remains above the law.
MR. GONZALES: No, sir.
SEN. FEINGOLD: Again, you know, if this is something where — where it — you take a good look at it, you give a presumption that the president ought to follow the law, that — you know, that’s — to me, that’s not good enough under our system of government.
MR. GONZALES: Senator, if I might respond to that, the president is not above the law. Of course he’s not above the law. But he has an obligation, too. He takes an oath as well. And if Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now, I think that that would be –
SEN. FEINGOLD: I recognize that, and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.
MR. GONZALES: Senator, this president is not — I — it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
SEN. FEINGOLD: Finally, will you commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it?
MR. GONZALES: I will to advise the Congress as soon as I reasonably can, yes, sir.
There don't appear to be any outright lies here; just a lot of lawyerly dodges. Gonzales will no doubt claim that the secret briefings to the so-called Gang of Eight amounted "advising Congress" (despite the fact that these briefings were apparently legally insufficient and it's questionable whether the administration actually made it clear in these briefings that FISA was being circumvented). The part about Feingold's question being too hypothetical to answer was certainly a dodge, particularly given the specificity of Feingold's question and the fact that Gonzales damn well knew that the administration wasn't complying with the laws Feingold mentioned. There's nothing hypothetical about a program that, at that point, had been in operation for over three years. Nor is it clear why giving a truthful answer about a general legal question would have in anyway compromised the program. Gonzales didn't have to go into specifics. He could have simply laid out an abbreviated version of the Article II argument made by the DoJ in its white paper.
This is just one more example of this administration insulting and humiliating Congress. If Congress allows this to stand, its relevance and power as an institution will be forever diminished.
posted by A.L. at 11:50 PM
6 Comments:
AL:
Any way we could get a link to Feingold's letter and/or a transcript of the relevant hearing?
I'd like to know if this is the bald-faced lie it seems to be or if the phrasing of the question(s) left Gonzales "wiggle room."
In any event, it's things like this, and what Greenwald found re the DeWine amendment, that put the lie to two main Bushie talking points: (a) that Congress knew what was going on and (b) that Congress intended, via the AUMF, to authorize taps targeting Americans outside of Title III and FISA.
I haven't had any luck finding it so far. If I do, I'll post a link.
Jane has posted a partial fair use transcript from Lexis. Gonzales only baldfaced lie is when he states that Feingold's question about wiretaps outside of Title III and FISA is a "hypothetical question."
Other than that, he refuses to say whether (a) the president had authority to authorize them or (b) how soon he would notify Congress if the President authorized such wiretaps. He also didn't technically lie when he said that it was not the "policy or agenda of the President to authorize actions that would be in contravention of our criminal statutes" because, as we know, they think that FISA criminal statute is unconstitutional and, thus, inoperable, insofar as it prevents the President from doing what is necessary to stop terrorists.
Of course, that's the absolute legal junk embraced by Yoo and Addington and opposed by stalwart conservatives Comey and Goldsmith, among others. But it's pretty clear that Gonzales didn't perjure himself or anything. All he did was take a giant pee on Congress' shoes. We'll see how they take it next week.
My linked post above has links to both the letter and the transcript of the Senate session.
The transcript linked is pretty long, Feingold is about eighty percent of the way in.
Run Russ Run!
He sticks to his guns and isn't afraid of this administraion. He is a deficit hawk and won WI in 2004 by 3000% more then Kerry. There was over 300,000 pro-bush people voting for Feingold.
www.russforpresident.com
Is there any evidence that Gonzales was aware of the NSA spying program at the time of the testimony?
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