Attorney General Alberto Gonzales sits down this morning before the Senate Judiciary Committee to take questions on the Bush administration's warrantless spying program. Maybe we're just cynical -- or maybe we've watched one too many Supreme Court confirmation hearings lately -- but we're not expecting many answers.
Gonzales came off as unprepared and evasive in his own confirmation hearing a year ago. He'll be prepared this time -- he has been practicing his answers with a small group of legal experts -- but that may just mean that he'll be prepared to be evasive. In a written version of his opening testimony, Gonzales declares that media coverage of the spying program has been "misinformed, confused or wrong," but it's clear that he won't be providing much in the way of details. "An open discussion of the operational details of this program would put the lives of Americans at risk," Gonzales says.
Of course, we wouldn't be having a discussion about surveillance today if the Bush administration had simply followed the procedures that Congress gave the executive branch when it adopted the Foreign Intelligence Surveillance Act of 1978. That's the first subject area senators ought to be probing with Gonzales, but it's only the first. If we had a seat on the Senate Judiciary Committee today, here are some of the questions that we'd ask:
Why weren't the FISA procedures good enough? Did you really think that the FISA court wouldn't give you a warrant if you had -- as you claim -- probable cause that someone in the United States was "talkin' to a member of al-Qaida"? How can you say that FISA's procedures weren't quick enough when they allowed you to get a warrant 72 hours after you began a wiretap? And if you didn't think they were adequate, why didn't you bother trying to get explicit congressional approval for something different?
In his defense of the program, the president says that if people inside the United States "are talkin' to a member of al-Qaida, we want to know why." How many Americans' calls have you monitored? Did it turn out that all of those Americans were "talking to a member of al-Qaida"? Or is the Washington Post correct when it says that most monitored calls turn out not to involve anyone from al-Qaida? So exactly how many times have you listened in on calls of American citizens who were doing nothing wrong at all? Can you guarantee that you've never listened in on calls of journalists or the administration's political opponents?
How can you say that it was adequate to brief a handful of members of Congress on the spying program when the National Security Act requires that all members of the House and Senate intelligence committees be briefed? Were you lying to Sen. Russ Feingold last year when he asked whether the president has the authority "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country," and you said it was a "hypothetical" question? Do you realize that you were under oath at that time? Are you aware that lying to Congress is a federal crime?