The keen legal mind of Alberto Gonzales

Gonzales Says Congress Authorized Spying

Until today, the wingnut position was that domestic spying by the NSA, otherwise banned by the Foreign Intelligence Surveillance Act, is permitted by virtue of a completely absurd inversion of basic statutory analysis. (For the wingnut claim, look here. For the smackdown, read this.)

I was planning to spend an hour or so this morning explaining basic statutory analysis, but it seems the clown posse has recognized that this dog won't hunt, because the Administration have already moved on to the next rationale: that the president's broad Constitutional powers trump the clear language of the statute. In other words, they want a constitutional crisis here. But Team Fascista is trying oout a few other approaches as well. Gonzo went on the Tee Vee today and shoveled the following horse manure:

Responding to a congressional uproar, the Bush administration said Monday that a secret domestic surveillance program had yielded intelligence results that would not have been available otherwise in the war on terror.

With Democrats and Republicans alike questioning whether President Bush had the legal authority to approve the program, Attorney General Alberto Gonzales argued that Congress had essentially given Bush broad powers to order the domestic surveillance after the Sept. 11, 2001 attacks.

"Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority," said Gonzales. He called the monitoring "probably the most classified program that exists in the United States government."

OK, in that order:

1) The existing FISA process already makes it ridiculously easy to get wiretaps, even after the fact. So I think we are entitled to considerable skepiticism about the claim that ignoring the FISA process yielded anything the government could not have gotten by following it. Remember -- no one is arguing that the government should not be able to obtain wiretaps. The only issue here -- the issue we need to keep front and center -- is whether there should be any oversight whatsoever on the reach of the executive. Like I said, they want Showdown at the Article II Corral.

2) The September 11 resolutions authorized repeal of the 4th Amendment? Puhleeze. I give this one a half-life of 72 hours.

3) The "highly classified" argument breaks down under even cursory examination. If I am a terrorist, the government has eight ways to Sunday under the law to put every aspect of my life under a microscope -- all without me ever knowing about it. Again, all we are talking about here is whether the NSA asks the court specifically created for this purpose for approval. The surveillance target will never know one way or the other if that permission was obtained. So the only reason the program needs to be secret is because they know it is illegal.