Gonzales Testimony on Domestic Spying

Mr. Gonzales, if as you say, the President has the power to use all of the tools at his disposal to protect the country, and he sees a Democratic leadership to be a threat to the country, does it not follow that he has the authority to do anything in his power to prevent a Democratic leadership?"

When I was young, when I first started my quest to find out what “better” meant and how to make the world a better place, I wanted to get elected to the legislature. I felt that a person there could actually do some good.

What can I say? I was young. I thought a legislator’s job was to try to find out the best course of action and cast a vote based on his considered opinion. I did not know that they were partisan robots who got their orders from the partisan leadership. (How else can we explain so many votes being made on party lines?)

Still, I like to imagine what it would be like to be a legislator who was not bound to a party.

Please allow me to indulge that fantasy for a moment. Tomorrow, Attorney General Alberto Gonzales will testify before the Senate Judiciary Committee concerning the defense of the Bush Administration's secret order to spy on Americans. So, what would I say to him?

SENATOR FYFE: Thank you, Mr. Chairman.

Mr. Gonzales, my time is limited and there is a lot that I want to cover.

Let’s start with the 4th Amendment. It states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I repeat, ...the right … shall not be violated, and no warrants shall issue, but on probable cause...

When you state that President Bush has the authority to allow wiretaps, you are stating that Article II of the Constitution naming the President the Commander in Chief of the Military, and Senate authorization to use force against those responsible for 9/11, imply that this right shall be violated, and that no warrants are needed at all, let alone those that depend on probable cause.

As I read it, the 4th Amendment to the Constitution is not ambiguous. The Constitution says, The right shall not be violated, and no warrants shall issue but on probable cause. You say that the right shall be violated and warrants are not even required.

Mr. Gonzales, I ask for your patience here. I actually have a three-part question, but I want to make sure that you understand what I am asking. So, please, let me finish before you start to answer.

Question 1

The first part of the question is this. You obviously believe that Article II of the Constitution and Congress’s authorization for use of force has the legal power to suspend the 4th Amendment to the Constitution. If you are right, then it seems to follow from your own argument that this gives the President the authority to suspend, say, the 2nd Amendment of the Constitution as well.

The 2nd Amendment states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. So, it appears that you are saying that, in the name of national security, the Government has the right to ban private ownership of weapons and confiscate all guns.

Again, all I am asking Mr. Gonzales is that if the government has the right to suspend the 4th Amendment, then it has the right to suspend the 2nd Amendment as well.

Plus, it would have the right to suspend the 1st Amendment. That is to say, if President Bush feels that newspaper articles criticizing his position on the war were harmful to national security – say, because they comfort the enemy – that the President has the power to nationalize the press and to dictate what is printed.

And, it would seem to follow that the President, on your argument Mr. Gonzales, also has the power to suspend the 5th Amendment, and to arrest American citizens without a warrant, and hold them in prison indefinitely without a trial. Furthermore, with the 8th Amendment being suspended as well, those Americans can be tortured or even killed at the sole discretion of the President. No trial. No warrant. The President simply gives some government agency a name. They go out, pick the person up, put a bullet in his head, and report back that the job is done.

Mr. Gonzales, if your argument makes any sense at all, it says that this is a perfectly legitimate expression of Presidential powers.

So, Mr. Gonzales, the first part of my question is this: Is the 4th Amendment and the Bill of Rights still in effect, or is it not? Are the Bill of Rights still in effect, or has the President suspended the Bill of Rights?

Question 2

Now, before you answer that, I want to make you aware of the second part of my question.

Article I gives the legislature -- that's us, Mr. Gonzales -- the right to make laws, and it gives the Judiciary the responsibility to adjudicate laws.

In fact, Mr. Gonzales, I want to note that your party has a long history of protesting about the branches of government overstepping their authority. They have made a great deal of noise about the crime of legislating from the bench, where judges step outside of their authority and actually create law, where they should limit themselves to interpreting the law that exists.

Anyway, Mr. Gonzales, you appear to be arguing that the Executive Branch has the authority to legislate from the oval office -- rewriting laws to suit its own interest -- and to adjudicate from the oval office. Plus you have claimed that the Executive Branch has the authority to adjudicate those laws. With respect to this wiretapping, you have argued that the Executive Branch alone gets to decide if it is breaking the law or not – that you have no duty to present your acts to an outside tribunal, such as a court.

Signing statements, which this administration has used in ways that previous Presidents have attempted only rarely, are nothing less than the President asserting the power to legislate from the Oval Office. They allow the President to rewrite a law as he signs it by changing its meaning, rather than looking to the intent of the legislature. The very instant that this legislature passed legislation banning torture, President Bush issued a signing statement that repealed the law the instant he signed the bill.

So, it appears that the President has not only suspended the Bill of Rights, he has suspended Article I and Article III of the Constitution – the parts that established a legislature and a judiciary.

In fact, he seems to have suspended Article II as well – at least that part that places limits on executive power. Nowhere in that Article does it say that the President has the authority to rewrite laws as he signs them, name himself the sole judge of last appeal, or to suspend the Bill of Rights. Yet, your argument suggests that he has these powers.

This leads ultimately to the second part of my question, Mr. Gonzales. Under your interpretation, is there any part of the Constitution that is still in force? Does the Constitution have any force at all? Or is it just a set of polite suggestions that the President can accept or reject as he may accept the advice of, say, some friend offering suggestions over dinner?

Question 3

Finally, Mr. Gonzales, let me present you with the third part of my question, then you can go ahead and answer.

You say that you are only monitoring calls between Americans and foreign terrorist suspects.

How do we know that is the case? How do we know that President Bush has not authorized the NSA to tap, for example, my phone call? How do we know that he is not listening in on the conversations of his political opponents, collecting strategic information that he then uses to form his party’s political strategy for the next election?

Are we supposed to take your word for this? I remind you, Mr. Gonzales, that for four years the Executive Branch has been giving the American People its word that it takes a warrant to spy on the American people. During the election he repeatedly said that the Constitution does not allow him to spy on Americans without a warrant. Now, we discover that this is a lie. Not only did he think that he had the authority to spy on Americans without a warrant, he was exercising that authority. He WAS spying on Americans without a warrant.

So, if you were to give me your word today that you are only listening in on conversations between Americans and suspected foreign terrorists, I ask you again, Mr. Gonzales, why should I believe you?

You have claimed that the President has this authority in the name of national security. We already know that the President views a Democratic leadership to be a threat to national security. This claim will hold center stage in the Republican 2006 strategy -- that if the Democrats get into power then the people will not be safe. So, if the President has the power to use all of the tools at his disposal to protect the country, and he sees a Democratic leadership to be a threat to the country, does it not follow that he has the authority to do anything in his power to prevent a Democratic leadership?"

More importantly, Mr. Gonzales, you seem certainly to be claiming to have the authority to spy on any Americans for any reason that the President, at his sole discretion, feels is important. Perhaps you are not yet spying on other conversations, but clearly you claim the right to do so.

Perhaps you are not yet sending out squads to pick Americans up off of the streets and locking them up in secret detention centers. Then again, maybe President Bush has already signed a secret executive order allowing the creation of death squads, where the President gives the name of a citizen to a special hit squad, who then goes out and kills him, conveniently disposing of the body. Maybe no such group exists, yet. However, Mr. Gonzales, you seem to be arguing that the President has the authority to set up such a group.

The standard method that people use, when they fear that somebody may abuse their power, is to assign somebody else to look over their shoulder. This is why we want the President to let somebody outside of the Presidential office know who he is spying on, who he is imprisoning, who he is torturing, and why. We want somebody to make sure that he is not spying on, imprisoning, and torturing political opponents.

You seem to have left us no way of knowing how far over the line this President has stepped. We are supposed to take his word for it. This President has already lied to us, saying that he has not stepped this far over the line when, as he now admits, he has been standing miles further beyond the line than he said he was. Perhaps he is actually standing miles further, doing more than we are yet aware of.

This is my third question, Mr. Gonzales. How are we supposed to know whether this, or some future President is not using the power to eavesdrop for political purposes, spying on political opponents or spying on the business competitors of his biggest campaign contributors, if we are not allowed to have somebody look over his shoulder?

Wrap up

Mr. Gonzales, by your argument, you have left the American people, the legislature, and the judiciary defenseless against an omnipotent President. If this President is not abusing those powers to the detriment of the American people, the next President might not show that restraint.

You say that you are doing this to protect our national security, Mr. Gonzales. Americans have long known that it is foolish to trust their security to a benevolent dictator. The Constitution itself is the best defense of those rights. However, Mr. Gonzales, what I find in your argument is a claim that the Constitution has been suspended, except for those parts that an omnipotent President with dictatorial powers decides that he is willing to keep around – for the time being.

There is no security in the form of government you are advocating.

Now, I see I have run out of time. I’m sorry. It appears that there is not enough time left for you to answer. Yet, Mr. Gonzales, at your earliest opportunity, I would like to hear what you have to say in answer to these questions.

I thank you, Mr. Chairman, and I yield back the remainder of my time.