The Gang of Eight Smokescreen
The only arguably new revelation to come from Alberto Gonzales' testimony yesterday was that the so-called Gang of Eight (the House and Senate leaders for each party and the ranking members of the Intelligence Committees) met on the day of the John Ashcroft hospital episode to discuss the warrantless surveillance program. Gonzales claimed that at this meeting, a consensus was reached that the program needed to be continued despite James Comey's refusal to sign off on it. Gonzales stated that he went to the hospital to convey to Ashcroft the conclusion of the Gang of Eight, in the hope that this would persuade Ashcroft to re-certify the program.
There are all kinds of problems with this story. First, Gonzales' version of events appears to be contradicted by at least four members of the Gang of Eight (all Democrats). Second, as David Kurtz at TPM highlights, this story doesn't seem to square with Gonzales testimony regarding what he actually said to Ashcroft at the hospital.
The most obvious problem with this story, though, one that I haven't seen anyone mention so far, is that it doesn't make any legal sense. Even if Gonzales is telling the unvarnished truth here--which would be unprecedented--the "consensus" of the Gang of Eight is of no legal significance at all. If the Justice Department had concluded that the activities in question were illegal, those activities wouldn't suddenly become legal because four congressmen and four senators failed to object to them in a top-secret briefing. That's not how our system works. There's no Gang of Eight fiat power in the constitution. The law is the law until both houses of Congress elect to change it and the president signs the bill.
We can't have a system where fidelity to the rule of law depends on how vociferously a select group of lawmakers object to illegal practices when informed of them in top-secret briefings to which the rest of Congress is not privy.
Yet this administration would have us believe that the acquiescence of this Gang of Eight (assuming it occurred) not only rendered illegal activity legal, but also warranted circumventing the acting Attorney General's authority by approaching his post-operative, heavily-medicated boss in his hospital room. Needless to say, these kind of things are not supposed to happen in a democratic republic.
There are all kinds of problems with this story. First, Gonzales' version of events appears to be contradicted by at least four members of the Gang of Eight (all Democrats). Second, as David Kurtz at TPM highlights, this story doesn't seem to square with Gonzales testimony regarding what he actually said to Ashcroft at the hospital.
The most obvious problem with this story, though, one that I haven't seen anyone mention so far, is that it doesn't make any legal sense. Even if Gonzales is telling the unvarnished truth here--which would be unprecedented--the "consensus" of the Gang of Eight is of no legal significance at all. If the Justice Department had concluded that the activities in question were illegal, those activities wouldn't suddenly become legal because four congressmen and four senators failed to object to them in a top-secret briefing. That's not how our system works. There's no Gang of Eight fiat power in the constitution. The law is the law until both houses of Congress elect to change it and the president signs the bill.
We can't have a system where fidelity to the rule of law depends on how vociferously a select group of lawmakers object to illegal practices when informed of them in top-secret briefings to which the rest of Congress is not privy.
Yet this administration would have us believe that the acquiescence of this Gang of Eight (assuming it occurred) not only rendered illegal activity legal, but also warranted circumventing the acting Attorney General's authority by approaching his post-operative, heavily-medicated boss in his hospital room. Needless to say, these kind of things are not supposed to happen in a democratic republic.
posted by A.L. at 12:50 PM
5 Comments:
All good points, but the bigger story hear is the lack of intelligent reporting by the mainstream media.
Made me sick to hear over and over again on NPR (National Propaganda Radio) that all Gonzo had to do was please one - our chimperor and that nothing else mattered.
The things you bring up are legit and important - perhaps more important is a dialog about why the media has consistently covered for the chimp and his cabal of criminals.
The issues you bring up stand on their own merits, but they also stand out as another example of the dishonesty of mainstream journalism - it has nothing to do with "competence" or "sloppiness", it is how the mainstream media now functions.
I wonder if the DOJ has done ANY of the nations law enforcement business AT ALL in the past 6 years.
Very well put, AL. Sad that this point is not being made in the MSM at all.. but I hope it will.
My question: if someone like Harman, or the Republican Senators in this top-secret meeting, "Approved" of this illegal program with some sort of a voice vote (which as you've pointed out, doesn't make it legal) does it open them to conspiracy Felony charges?
Senators can't magically change the law, but if they help the Administration violate the law in secret, knowing that the DOJ says the "program" is illegal... is that not aiding in the conspiracy to violate the law?
I mentioned this on Balkinization, but a plausible explanation here -- I think -- is that since the OLC's objection seems to have been primarily related to statutory authorization, the White House was trying to use the "consensus" of the Gang of Eight (who were likely never told that the program was any different than what they'd originally agreed to) to create a smokescreen of Congressional approval that would give them enough coverage to justify a DoJ reauthorization -- and give them some breathing room to fight the new OLC opinion internally.
Since when did 4 out of 8 become a "consensus?"
Maybe Gonzo saw it that way because it was the 4 Democrats that objected. 4 Republicans in favor vs 4 Democrats opposed is a "consensus" in favor.
Hell, it's a mandate.
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