The partisan rhetoric from Leahy, Feinstein and Feingold were stunning. Durbin was also out of line, but mainly incoherent. Gonzales has the patience of a saint.
Here, for your reading pleasure, are what I consider the 'highlights' (or 'lowlights' as the case may be) of the hearings.
I will blog more on this later, but wanted to get this published while it is fresh...
Your tax dollars at work. Anyone reading this who thinks we would be more safe if these people were making the counter-terrorism decisions is delusional. As you read this exchange from the beginning of the Senate Judiciary Committee hearing with U.S. Attorney General Alberto Gonzales, imagine the President negotiating with these people to try to get their permission to wiretap a suspected conversation between Al Qaeda and their terrorist counterparts in the U.S., plotting an eminent attack.
This first section is long, but you need to read it--this is how the hearing opened.
SPECTER: We have told the attorney general we would require his presence all day. We will have 10-minute rounds, which is double what is the practice of this committee. And, as I've announced in advance, we will have multiple rounds.
There has been some question about swearing in the attorney general and I discussed that with the attorney general. He said he would be willing to be sworn.
After reflecting on the matter, I think it is unwarranted because the law provides ample punishment for a false official statement or a false statement to Congress under the provisions of 18 United States Code 1001 and 18 United States Code Section 1505.
The penalties are equivalent to those under the perjury laws.
There has been a question raised as to the legal memoranda within the department. And at this time and on this showing, it is my judgment that that issue ought to be reserved to another day. I'm sure it will come up in the course of questioning.
The attorney general will have an opportunity to amplify on the administration's position. But there is a fairly well-settled doctrine that internal memoranda within the Department of Justice are not subject to disclosure because of the concern that it would have a chilling effect; that if lawyers are concerned that what they write may later be subjected to review by others, they'll be less than candid in their positions.
SPECTER: This committee has faced those issues in recent times with requests for internal memoranda of Chief Justice Roberts. And they were not produced. And they were more relevant there than here because of the issue of finding some ideas as to how Chief Justice Roberts would function on the court if confirmed.
Here we have legal issues and lawyers on this committee and other lawyers who are as capable as the Department of Justice in interpreting the law.
One other issue has arisen, and that is the issue of showing a video. And I think that would not be in order.
The transcripts of what the president said and the transcripts of what you, Mr. Attorney General, said earlier in a discussion with Senator Feingold are of record --this is not a Sunday morning talk show -- and the transcripts contain the full statement as to legal import and legal effect. And I'm sure that those statements by the president, those statements by you, will receive considerable attention by this committee.
That's longer than I usually talk, but this is a very big subject.
FEINGOLD: Mr. Chairman?
SPECTER: This is the first of a series of hearings -- at least two more -- because of the very profound and very deep questions which we have here, beyond statutory interpretation and the constitutional implications of the president's Article 2 powers.
And this is all in the context of the United States being under a continuing threat from terrorism.
But the beauty of our system is the separation of powers, the ability of the Congress to call upon the administration for responses, the response of the attorney general in being willing to come here today, and then the Supreme Court to resolve any conflicts.
SPECTER: I'd like to yield now to...
FEINGOLD: Mr. Chairman, could I just ask a quick clarification?
SPECTER: Senator Feingold?
FEINGOLD: Heard your judgment about whether the witness should be sworn. What would be the distinction between this occasion and the confirmation hearing where he was sworn?
SPECTER: The distinction is that it is the practice to swear nominees for attorney general or nominees for the Supreme Court, or nominees for other Cabinet positions, but the attorneys general have appeared here on many occasions in the 25 years that I have been here and their might be a showing, Senator Feingold, to warrant swearing.
FEINGOLD: Mr. Chairman, I'd just say that the reason that anyone would want him sworn has to do with the fact that certain statements were made under oath at the confirmation hearing. So it seems to me logical that, since we're going to be asking about similar things, that he should be sworn in this occasion, as well.
LEAHY: And, Mr. Chairman, if I might on that point -- if I might on that point, of course, the attorney general was sworn in on another occasion other than his confirmation, when he and Director Mueller appeared before this committee for oversight.
And I had asked the chairman, as he knows, earlier that he should be sworn on this. And I made that request right after the press had pointed out where an answer to Senator Feingold appeared not to have been truthful. And I felt that that is an issue that's going to be brought up during this hearing, and we should go into it.
LEAHY: I also recall the chairman and other Republicans insisting that former Attorney General Reno be sworn, which she came up here on occasions other than her confirmation.
I think, especially because of the article about the questions of the senator from Wisconsin, Senator Feingold, I believe he should have been sworn. That is, obviously, the prerogative of the chairman.
But I would state again, and state strongly for the record, what I've told the chairman privately. I think in this instance, similar to what you did in April with Attorney General Gonzales and Director Mueller, both of whom were sworn, and as the chairman did on -- insisted with then-Attorney General Reno, I believe he should be sworn.
SPECTER: Well, Senator Leahy and I have not disagreed on very much in the more than a year since we've worked together as the ranking and chairman, and I think it's strengthened the committee.
And I did receive your request. And I went back and I dug out the transcript and reviewed Senator Feingold's vigorous cross- examination of the attorney general at the confirmation hearings.
And I know the issues as to torture, which Senator Feingold raised, and the issues which Senator Feingold raised as to searches without warrants.
And I have reviewed the provisions of 18 USC 1001 in the case involving Admiral Poindexter, who was convicted under that provision; and have reviewed the provisions of 18 United States Code 1505, where Oliver North was convicted. And there are penalties provided there commensurate with perjury.
And it is my judgment that it is unnecessary to swear the witness.
LEAHY: But, Mr. Chairman, may I ask, if the witness has no objection to being sworn, why not just do it and then not have this question raised here? I realize only the chairman can do the swearing in.
LEAHY: Otherwise, I'd offer to give him the oath myself, insofar as he said he was willing to be sworn in. But if he's willing to be, why not just do it?
SESSIONS (?): Mr. Chairman...
SPECTER: Well, the answer to why I'm not going to do it is that I've examined all the facts and I've examined the law and I have asked the attorney general whether he would object or mind and he said he wouldn't. And I have put that on the record.
But the reason I'm not going to swear him in is not up to him. Attorney General Gonzales is not the chairman; I am. And I'm going to make the ruling.
(CROSSTALK)
LEAHY: I would point out that he's been here before this committee three times. The other two times he was sworn. It seems unusual not to swear him in this time.
FEINGOLD (?): Chairman, I move the witness be sworn.
SPECTER: The chairman has ruled. If there is an appeal from the ruling of the chair, I have a pretty good idea how it's going to come out.
FEINGOLD (?): Mr. Chairman, I appeal the ruling of the chair.
SPECTER: All in favor of the ruling of the chair, say "aye."
(UNKNOWN): Roll call.
SPECTER: Opposed?
FEINGOLD (?): Ask for a roll call vote.
SPECTER: The clerk will call the roll.
I'll call the roll.
(LAUGHTER)
SESSIONS: Out of the question.
(LAUGHTER)
SPECTER: Senator Hatch?
HATCH: No.
SPECTER: Senator Grassley?
GRASSLEY: No.
SPECTER: Senator Kyl?
KYL: Mr. Chairman, is the question to uphold or to reject the ruling?
SPECTER: The question is to uphold the ruling of the chair, so we're looking for ayes, Senator.
(LAUGHTER)
LEAHY: But we're very happy with the noes that have started on the Republican side, they being the better position.
HATCH (?): I'm glad somebody clarified that.
SPECTER: So the question is, "Should the ruling of the chair be upheld that Attorney General Gonzales not be sworn?"
(CROSSTALK)
SPECTER: By proxy for Senator Brownback, aye.
Senator Coburn?
(CROSSTALK)
SPECTER: We've got enough votes already.
Senator Leahy?
LEAHY: Emphatically, no.
(CROSSTALK)
SPECTER: Aye.
The ayes have it.
FEINGOLD: Mr. Chairman, I request to see the proxies given by the Republican senators.
(This guy is clueless. So, now is he accusing the other Senators of lying? This guy would make a GREAT President. His rhetorical skills are permanently stuck at the "Liar, liar, pants on fire" level. Next, he will be 'double dog daring' the chairman NOT to have Gonzales sworn in. Why does he HAVE to be from Wisconsin?)
SPECTER: Would you repeat that, Senator Feingold?
FEINGOLD: I request to see the proxies given by the Republican senators.
SPECTER: The practice is to rely upon the staffers. But without counting that vote -- well, we can rephrase the question if there's any serious challenge of the proxies.
This is really not a very good way to begin this hearing.
SPECTER: But I've found that patience is a good practice here.
(Really? Patience? What has that bought us so far, exactly? An insinuation that the Attorney General of the United States is likely to lie to a Congressional committee unless he is under oath? Puh-lease.)
SESSIONS: Mr. Chairman (OFF-MIKE) very disappointed that we went through this process.
This attorney general, in my view, is a man of integrity. And having read the questions, as you have, that Senator Feingold put forward, and his answers, I believe he'll have a perfect answer to those questions when they come up at this hearing.
And I do not believe they're going to show he perjured himself in any way or was inaccurate in what he said.
And I remember having a conversation with General Myers and Secretary of Defense Rumsfeld, and one of the saddest days in their career was having to come in here and stand before a Senate committee and raise their hand as if they are not trustworthy in matters relating to the defense of this country.
And I think it's not necessary that a duly confirmed Cabinet member have to routinely stand up and just give an oath when they are, in effect, under oath and subject to prosecution if they don't tell the truth.
I think it's just a question of propriety and good taste and due respect from one branch to the other.
And that's why I would support the chair.
LEAHY: Mr. Chairman, I don't...
SPECTER: Let's not engage in protracted debate on this subject. We're not going to swear this witness, and we have the votes to stop it.
Senator Leahy?
LEAHY: Mr. Chairman, I have stated my position why I believe he should be sworn in. But I understand that you have the majority of votes.
(Now we progress rapidly into baseless FUD-slinging--fear, uncertainty and doubt. Here are some excerpts from the day. Bold indicates my emphasis.)
LEAHY: But my concern is the laws of America. My concern is when we see peaceful Quakers being spied upon, where we see babies and nuns who can't fly on airplanes because they're on a terrorist watch list put together by your government.
(No, really, he actually SAID this. I am not making this up.)
GONZALES: Our enemy is listening. And I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.
(A chilling thought that is totally lost on Leahy and the Dems.)
LEAHY: You talk about authorization for use of military force. We have a chart up over there; says that, "The president is authorized to use all necessary and appropriate force against those nations, organizations or persons that he determines planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001, or harbored such organizations of persons, in order to prevent future acts of international terrorism against the United States by such nations, organizations or persons."
Now, basically, what you're saying is that Congress must have understood to have authorized the president to do it: not that we actually did but that we must have understood it.
Now, this authorization is not a wiretap statute. I was a prosecutor, Senator Specter was a prosecutor, a lot of prosecutors here, we know what a wiretap statute looks like. This is not it.
(Here, Leahy tries to make the lame point that the Congress authorized the President to use all necessary and appropriate force against the terrorists, but that didn’t include wiretapping. In other words, we can shoot ‘em, blow ‘em up, lock ‘em up, but please, please, please, don’t listen in on their phone conversations??? Gonzales fires back with Hamdi…)
GONZALES: Sir, there is no specific language, but neither is there specific language to detain American citizens. And the Supreme Court said that the words "all necessary and appropriate force" means all activities fundamentally incident to waging war.
LEAHY: But there wasn't a law -- they didn't have a law specifically on this.
(Pay careful attention, here. Leahy just argued that there is no law against detaining American citizens without a warrant. Huh?)
GONZALES: Sure they did, sir.
LEAHY: Using the Jackson test, they have a law on wiretapping. It's called FISA. It's called FISA. And if you don't like that law, if that law doesn't work, why not just ask us?
GONZALES: Sir, there was a law at question in Hamdi. It was 18 USC 4001(a). And that is: You cannot detain an American citizen except as authorized by Congress.
And Hamdi came into the court saying, "The authorization to use military force isn't such a permission by Congress to detain an American citizen."
And the Supreme Court -- Justice O'Connor said -- even though the words were not included in the authorization, Justice O'Connor said: Congress clearly and unmistakably authorized the president to detain an American citizen. And detention is far more intrusive than electronic surveillance.
(Senator Grassley raises the question of whether Gonzales is looking into the leak from the New York Times. Where is the outrage from the Dems who were foaming at the mouth and calling for the firing of Karl Rove over the non-event of the year--the 'outing' of Valerie Plame???)
BIDEN: For if, in fact, the only people being wiretapped or e-mails read are Al Qaida operatives contacting American citizens, I don't think you're going to find anybody in America saying, "Oh, my God, don't do that."
(Shameless doublespeak. You won't find anybody in America saying don't do it--except a bunch of politically-motivated people on Capitol Hill, since that is EXACTLY what the Dems are saying. But, if they tell us frequently enough that they are NOT saying it, they think they can SAY it without any political ramifications.)
BIDEN: How will we know, General, when this war it over?
(Gotta love Biden. He thinks he's in a different hearing. Isn't this the "What are we doing in Iraq Hearing? Oh, no, that's over in the Hart Building!)
BIDEN: This is why the Intelligence Committee has the responsibility to be able to look at someone and have an absolute guaranteed assurance under no circumstance is any American being eavesdropped upon unless it's coming from a foreign soil and a suspected terrorist, and do it under oath and do it under penalty of law if they've misrepresented.
(This comment reveals the complete unreasonableness of the Dems. This is an unachievable standard. Even TRYING to attain it would tie our intelligence people up in knots while the terrorists will laugh all the way to the jihad. An ‘absolute guaranteed assurance under no circumstances…under penalty of law if they’ve misrepresented.” The American people do not want to see our intelligence community hamstrung by this impossible standard.
This next exchange occurs between Kohl & Gonzales. Kohl can’t decide whether he should be more outraged that the President is ‘breaking the law’ by ‘domestic spying’ on calls between Al Qaeda and people within the U.S., or that Bush is NOT wiretapping conversations that occur exclusively within the U.S. between known Al Qaeda operatives. His aides forgot to give him today's "Talking Points Memo".)
KOHL: Just to go back to what Senator Biden and then Senator Kyl referred to about Al Qaida-to-Al Qaida within the country, you're saying we do not get involved in those calls...
GONZALES: Not under the program in which I'm testifying, that's right.
(CROSSTALK)
KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that's incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country -- domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country -- you are very smart, so are we, and to those of us who are interacting here today, there's something that unfathomable about that remark.
GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president...
KOHL: No, but isn't -- we need to have some logic, some sense, some clarity to this discussion this morning.
(I agree--a good start would be to eject Kohl & Leahy from the meeting.)
GONZALES: I will say that our staff at the Department of Justice -- these are the experts in the FISA process -- has in essence tripled since 2002. I think we all realized following the attacks of 9/11 that we needed to get more folks on board to help us with the FISA application.
It still takes too long, in my judgment, to get FISAs approved. I've described in my opening statement the process that's involved here.
FISA applications are often an inch thick. And it requires the sign-off by analysts out at NSA, lawyers at NSA, lawyers at the department, and finally me. And then it's got to be approved by the FISA Court.
I've got to tell you -- I was going to try to make this point in response to a question from the chairman -- the members of the FISA Court are heroes, as far as I'm concerned. I mean, they're available day or night, they're working on weekends and holidays, because they want to make themselves available. They're killing themselves, quite frankly, making themselves available to be there to sign off on a FISA application if it meets the requirements of the statute.
GONZALES: But we still have some problems.
(Anyone who has ever waited in line at the DMV to renew their driver's license does NOT want to see bureaucracy seep into our defense against terrorism.
Next at bat, Ms. Feinstein, who withers under counterattack from Gonzales.)
FEINSTEIN: The Intelligence Committees have not been briefed on the scope and nature of the program. They have not been able to explore what is a link or an affiliate to Al Qaida or what minimization procedures are in place. We know nothing about the program other than what we read in the newspapers.
(Really? What the heck is she doing all day? Getting her nails done? Doesn't she know anyone on the Intelligence Committee? And by the way, Diane, I wouldn't believe everything you read in the newspapers....)
FEINSTEIN: And so it comes with huge shock, as Senator Leahy said, that the president of the United States in Buffalo, New York, in 2004, would say, and I quote, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
Mr. Attorney General, in light of what you and the president have said in the past month, this statement appears to be false. Do you agree?
GONZALES: No, I don't, Senator. In fact, I take great issue with your suggestion that somehow that president of the United States was not being totally forthcoming with the American people.I have his statement, and in the sentence immediately before what you're talking about, he said -- he was referring to roving wiretaps.
And so I think anyone...
FEINSTEIN: So you're saying that statement only relates to roving wiretaps, is that correct?
GONZALES: Senator, that discussion was about the Patriot Act. And right before he uttered those words that you're referring to, he said, "Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talk about wiretaps, it requires -- a wiretap requires a court order."
GONZALES: So, as you know, the president is not a lawyer, but this was a discussion about the Patriot Act, this was a discussion about roving wiretaps. And I think some people are trying to take part of his statement out of context, and I think that's unfair.
FEINSTEIN: OK, fair enough. Let me move along.
(Geesh, the press never stops me when I quote the President out of context....)
Continued in Part II.....
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