Two weeks ago today, Attorney General Alberto Gonzales apparently backed down from a year of wrangling over warrantless domestic searches. After arguing incessantly that the surveillance program was absolutely necessary, had to be kept separate from FISA, and could not be altered under any circumstances, Gonzales told the Senate Judiciary Committee that the administration was backing down and that the program would, from now on, be subjected to oversight.
There were, however, a few missing details. How will the now-legal program operate? Did the administration find a friendly judge who gave a blanket approval to the program? Will the administration have to get a warrant for every person it wishes to spy on? No one was quite sure, and when asked for specifics, Gonzales balked. The program was going to be legal, Gonzales said, and that’s all we needed to know.
With a Democratic congressional majority, that wasn’t good enough. Before they were satisfied with new-and-allegedly-improved surveillance, lawmakers insisted that Gonzales tell them what kind of program the administration would have. Today, finally, Gonzales agreed.
Attorney General Alberto Gonzales said Wednesday he will turn over secret documents detailing the government’s domestic spying program, ending a two-week standoff with the Senate Judiciary Committee over surveillance targeting terror suspects.
“It’s never been the case where we said we would never provide access,” Gonzales told reporters.
“We obviously would be concerned about the public disclosure that may jeopardize the national security of our country,” he said. “But we’re working with the Congress to provide the information that it needs.”
It sounds encouraging. But as long as we’re on the subject, is now a good time to ask about what will be done about the law-breaking the administration was doing?
James Bamford raised the question in an NYT op-ed today.
Laws are broken, the federal government investigates, and the individuals involved — even if they’re presidents — are tried and, if found guilty, punished. That is the way it is supposed to work under our system of government. But not this time.
Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in Detroit issued her ruling in the A.C.L.U. case. The president, she wrote, had “undisputedly violated” not only the First and Fourth Amendments of the Constitution, but also statutory law, the Foreign Intelligence Surveillance Act. Enacted by a bipartisan Congress in 1978, the FISA statute was a response to revelations that the National Security Agency had conducted warrantless eavesdropping on Americans. To deter future administrations from similar actions, the law made a violation a felony punishable by a $10,000 fine and five years in prison.
Yet despite this ruling, the Bush Justice Department never opened an F.B.I. investigation, no special prosecutor was named, and there was no talk of impeachment in the Republican-controlled Congress.
Justice Department lawyers argued last June that warrants were not required for what they called the administration’s “terrorist surveillance program” because of the president’s “inherent powers” to order eavesdropping and because of the Congressional authorization to use military force against those responsible for 9/11. But Judge Taylor rejected both arguments, ruling that even presidents must obey statutory law and the Constitution.
On Jan. 17, Attorney General Alberto Gonzales unexpectedly declared that President Bush had ended the program, deciding to again seek warrants in all cases. Exactly what kind of warrants — individual, as is required by the law, or broad-based, which would probably still be illegal — is as yet unknown.
The action may have been designed to forestall a potentially adverse ruling by the federal appeals court in Cincinnati, which had scheduled oral arguments on the case for today. At that hearing, the administration is now expected to argue that the case is moot and should be thrown out — while reserving the right to restart the program at any time.
But that’s a bit like a bank robber coming into court and arguing that, although he has been sticking up banks for the past half-decade, he has agreed to a temporary halt and therefore he shouldn’t be prosecuted. Independent of the A.C.L.U. case, a criminal investigation by the F.B.I. and a special prosecutor should begin immediately. The question that must finally be answered is whether the president is guilty of committing a felony by continuously reauthorizing the warrantless eavesdropping program for the past five years. And if so, what action must be taken?
I have a hunch we’ll never know, and lawmakers will be largely satisfied if the Bush administration is willing to start following the law.
It is not, however, an encouraging precedent for the future.