Congress, The Attorney General and The Foreign Intelligence Surveillance Act

The New Republic, August 6, 2007

One of the problems with having a dissembling attorney general is that it becomes difficult for his administration to move agenda items that rely to any degree on his credibility–even when they might have merit. In his recent testimony before the Senate Judiciary Committee, Alberto Gonzales provoked bipartisan rage by grossly misrepresenting the 2004 dispute within the Justice Department over the National Security Agency’s warrantless surveillance program. When such a thing happens, it’s a little tricky for that same attorney general that same day to ask that same Congress to give him broad new surveillance powers. Yet, in an act of monumental chutzpah, that is exactly what Alberto Gonzales did. The amazing thing is that, at least for now, he seems to have gotten away with it.

Gonzales’s misrepresentation was not the kind one could prosecute. He told the committee, as he has done before, that there was no serious dispute within the administration as to the legality of the so-called Terrorist Surveillance Program (TSP), and that the infamous confrontation in then-Attorney General John Ashcroft’s hospital room in March 2004 was not over the program but over “other intelligence activities.” This was, well, untrue–or, rather, true in the very narrow sense that Gonzales was using the term “terrorist surveillance program” to refer only to the specific portion of the NSA’s program that President Bush had publicly acknowledged. The dispute, it seems, centered on related NSA activity authorized by the same secret executive order and which many officials–including FBI Director Robert Mueller–regard as part of the same program. It depends, you see, on what the definition of “program” is.

This ambiguity is surely enough to get the attorney general off the hook for perjury, so talk of an independent counsel is kind of silly. But his comments have been intentionally deceptive, just the thing to finish off for good his already-frayed credibility on Capitol Hill. Members of Congress have every right to conclude that his testimony vitiates whatever vestiges of fitness for his office Gonzales might have retained up until that point.

But Congress didn’t wave it off. Rather, the Democratic-controlled body passed a temporary version of the administration’s proposal, after a standoff in the run up to the legislature’s August recess. Under the new law’s terms, FISA will not apply when the government’s surveillance target is “reasonably believed” to be abroad–even if the other party to the monitored communication is, say, a United States citizen in his home. Such surveillance can be authorized by, you guessed it, Alberto Gonzales and the director of national intelligence.

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