No Comment — May 17, 2007, 3:43 pm

Defending the National Surveillance State: Torture, Lies and Secrecy

Alberto Gonzales is challenged on his testimony about FISA, in which he sharply contradicts Deputy Attorney General James Comey. His response is predictable: Gonzales is sticking with the sworn account he furnished earlier, which is to say, he’s sticking with his lies. Gonzales’s conduct wonderfully sums up the Bush Administration’s attitude towards the national surveillance state it has crafted: don’t worry about the fact that it’s illegal. When your own lawyers tell you it’s illegal, fire them. When newspapers expose the illegality, you commence surveillance of the reporters in question, engage in thuggish harassment, and threaten to prosecute the newspapers – using the heavy hand of the state to coerce their silence. And when you’re caught in lies under oath to Congress by the testimony of government officials who serve alongside of you, and have foolish qualms about lying under oath to Congress – you persist in your lies and denigrate your former colleagues for their disloyalty. (“Loyalty,” as Sid Blumenthal reminds us today, has at its core the word “law” – loi in French – such an unfortunate coinage, since as Bush and Gonzales use the term, “law” is a disruptive irritant.)

So what exactly are the parameters of the surveillance program that Card and Gonzales were so hot to keep running that they tackled John Ashcroft, writhing in agony in a hospital bed? The indispensable Marty Lederman has a run-down of the best informed speculation among national security law experts. We shouldn’t think of this as the sort of primitive eavesdropping as shown in movies like The Conversation or The Life of Others. But it certainly includes surveillance of American citizens – notwithstanding essentially dishonest suggestions to the contrary – and it is passing to surveillance organs the power to pick their targets without the need for probably cause. And as such, it amounts to a wholesale collapse of constitutional and legal constraints that circumscribe the government’s power to listen in to Americans. Moreover, the list of agencies involves seems greatly expanded. It started with NSA. But it’s clear based on materials that have later come forward that the FBI is engaged in the program in a wholesale fashion, as are Department of Defense agencies like the Defense Intelligence Agency (presenting not only a criminal violation of FISA, but also of the Posse Comitatus Act).

In sum, Attorney General Gonzales, the nation’s chief law enforcement officer, is defying the Congress. He insists that he is above the law, not accountable to it. And he insists that Congress can’t make him enforce the law. He’s certainly right about that. If he won’t leave, Congress has one obvious remedy: impeachment. It’s time to address that in a consequent fashion. Writing this morning in The New Republic, Benjamin Wittes – the Washington Post’s former editorial page editor, writes:

while the basic contours of this encounter have been public for some time, the full story, as Comey told it as part of the committee’s investigation into the federal prosecutor firings, gives the picture a more sinister sheen. What he described, very simply, was a White House bent on defying the law as the Justice Department understood it. It is, in a city that likes to imagine itself beyond shock, a genuinely shocking story…

At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales’s part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA’s program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law…

There is no way to resolve this problem as long as the man at the Justice Department’s helm is the sort of person who can lean on a hospitalized colleague to usurp the power to authorize something that the department has determined to be unlawful… I never imagined [Gonzales] capable of behavior so wholly dishonorable as what Comey described on Tuesday. In fairness to him, he should have the chance to tell his side of the story. But if he cannot materially challenge Comey’s account, he must be removed from office immediately.

Wittes is correct in everything except his cautious expression of surprise about the inner character of Gonzales. He could never imagine that a person who authorized torture and called the Geneva Conventions “quaint” and “obsolete” would be capable of doing such a thing? Really? That speaks of a quite limited imagination indeed.

But the time has come to start moving towards a path of correction – and that requires cleaning out the Augean stables that Gonzales has made of the Department of Justice.

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More from Scott Horton:

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