My Impressions on the NSA Hearings, or, Why Warrantless Wiretapping Is Illegal

Attorney General Alberto Gonzales (who was not sworn in), said, "President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance on a far broader scale."

Ah, who can forget George Washington's famous phone tapping?

In 1978, the FISA law was passed.  So saying that Washington, Lincoln or Roosevelt did it has absolutely no bearing on today.  None.  You see, a law is not voluntary.  Every single person has to follow the laws; that is what Ben Franklin, George Washington and the rest of the Founding Fathers fought for.  It is one of the basic laws of America that no one person is above the law.

Until now.  It's funny, every other President since Carter has been able to follow the law.  Gonzales admits this in the following exchange with Sen Russ Feingold:

FEINGOLD: Let me first ask, do you know of any other President who has authorized warrantless wiretaps outside of FISA, since 1978, when FISA was passed?

GONZALES: Um, none come to mind, Senator. But maybe — I would be happy to look to see whether or not that’s the case.

FEINGOLD: I can take it as a no unless you submit something?

GONZALES: I can’t give you an answer.

FEINGOLD: Ok.

Oh, and Republican Senator Arlen Specter decided to get in on the illegal wiretapping-bashing.  Notice, he's a Republican - and a prominent one at that.

SPECTER: I don’t think you can use principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute. Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act there was general shock.

GONZALES: We’ve never asserted that FISA has been amended. We’ve always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, those complement each other. this is not a situation where FISA has been overwritten or FISA has been amended. That’s never been our position.

SPECTER: That just defies logic and plain English.

That's George Bush's administration for ya - defying logic and plain English for five years and counting.  If you don't believe me, go pick up a George Bush Quote-A-Day calendar; I have one next to my Dave Barry Quote-A-Day calendar and I'm not quite sure which is funnier.  At least Barry is funny on purpose.

Back to wiretapping.  Specifically, Gonzales telling us what we can and can't talk about.

BIDEN: Thank you very much.
General, how has this revelation damaged the program?

I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls.

I mean, I'm a little confused. How did it damage this?

GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.

And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.

But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.

(LAUGHTER)

Yes, if we ignore them, they might think we went away.  I mean, it worked for New Orleans citizens, right? 

Look, Al Qaeda and other terrorists are bad people.  Very bad.  But to consider them stupid or incompetent is a very, very bad idea.  Do not think that because Osama bin Laden is living in a cave that he is a dumb person.  Do not think that he or his top aides would be naive, be dumb enough to think that we are not intercepting their calls.  It would be a disastrous, stupid thing to do.

The best summary of the White House's thinking came from Sen. Herb Cole:

Mr. Attorney General, if terrorists are operating in this country or people in this country are communicating with terrorists and of course we must collect whatever information we have, or that we can. To accomplish this, the administration had three options as you know:

First, it could have followed the current law which most experts believe gives you all the authority you need to listen to these calls.

Second, if you thought the law inadequate, you could have asked Congress to grant you additional authority.

Third — the course you followed — conduct warrantless spying outside current law and without new authorization.

That's all we ask, is that you take one of hte first two options.  The ones that are lawful, the ones that are, frankly, American.