Part 2 of my rundown of the NSA wiretap hearings. As I read through the Transcript I will highlight various aspects of it that interest me.
At one point Leahy is basically trying to say that if Bush authorized taps on international calls without a warrant whats to stop him from tapping Americans he believes are Al-Qaeda:
GONZALES: We are always, of course, subject to the Fourth Amendment. So the activities of any kind of surveillance within the United States would, of course, be subject to the Fourth Amendment.
LEAHY: Well, Mr. Attorney General, we’re getting the impression that this administration’s, kind of, picking and choosing what they are subject to.
Can you show us in the authorization for use of military force what is the specific language you say that’s authorizing wiretapping of Americans without a warrant?
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.
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 citizens 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.
Bingo! Well put and exactly what most of us have been trying to argue to these leftists to no avail.
UPDATE II
Sen. Hatch goes through a litany of the cases heard before the Appeals court affirming the Presidents inherent power to collect foreign intelligence without a warrant:
- Katz vs. US
- Hamdi vs. US
- US vs. Troung
- US vs. Latenka
- US vs. Brown
- US vs. District Courts
- US vs. Keith
- Haig vs. Agee
- Campbell vs. Clinton
- Re. Sealed Case (FISA)
UPDATE III
Sen. Grassley does a great job questioning why there is not the same kind of outcry about these NSA leaks as there were when a CIA deskjockey got outed:
GONZALES: Obviously, we have to look at the evidence, and if the evidence shows that a crime has been committed, then obviously we’ll have to make a decision about moving forward with a prosecution.
GRASSLEY: And I don’t blame you for this, but I don’t hear as much about public outcry about this leak as I did about Valerie Plame and the White House disclosures of her — or presumed disclosures of her identify of a CIA agent. And to me that’s a two-bit nothing compared to this sort of issue that we have before us of this information being leaked to the press.
And in the follow-up commentaries, reading the newspapers and TV, you get the impression that this is some sort of an LBJ, J. Edgar Hoover operation that’s designed to skirt the law to spy on domestic enemies, and I think you’re making very clear the opposite, that this is only concerned about the national security of the United States, and that’s where the focus should be.
GRASSLEY: But the constant repetition on the news media of the term “domestic spying,” as opposed to spying on — and electronic surveillance of somebody outside the United States connected with an organization that has as their goal the killing of Americans or the threatening of America or the destruction that happened on September the 11th, is entirely two different things.
UPDATE IV
Senator Feinstein attempts to roll Gonzales over the coals with the President’s statement that all wiretaps done by his Administration are done by warrant:
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.
She tried the typical lefty tactic of using only a portion of a speech and taking it out context to bash Bush, but Gonzales had none of it.
UPDATE V
Here is another good rundown on the important Hamdi case:
SESSIONS: With regard to statutory construction and how we should construe it, people have made the point that it’s a general principle that a specific statute might control over a general statute.
But isn’t it true that if a general statute clearly contemplates certain actions, and it can’t be effective without those actions, then it would overrule the more specific earlier statute?
GONZALES: Depending on the circumstances, that would certainly be true, Senator.
I might just also remind people, when you talk about general statutes versus specific statutes, this same argument was raised in connection with the Hamdi case.
GONZALES: We had a specific statute that said no American citizen could be detained except as otherwise authorized by a statute. And the Supreme Court said, the authorization to use military force, even though it may have been characterized by some as a broad grant of authority, nonetheless, that was sufficient to override the prohibition in 4001(a).
SESSIONS: I think that’s absolutely critical. I believe the Hamdi case is a pivotal authority here, after FISA, after the authorization of force on Al Qaida. An American citizen was detained without trial and the Supreme Court of the United States held that since it was part of a military action in wartime that that person could be held without trial as an incident to the authorization of force.
Would you not agree that listening on a conversation is less intrusive than putting an American citizen in jail?
Sen. Sessions then asks about Clinton’s warrantless searches:
SESSIONS: I want to ask you this question about that President Clinton’s administration ordered several warrantless searches on the home and property of an alleged spy, Aldrich Ames. Actually, he was convicted. Isn’t that true?
And it also authorized a warrantless search of the Mississippi home of a suspected terrorist financier.
And the deputy attorney general, Jamie Gorelick, the second in command of the Clinton Department of Justice, said this: “The president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.” Are those comments relevant to the discussion that we are having today?GONZALES: As I understand it, that was her testimony. I think there was an acknowledgment of the president’s inherent constitutional authority.
Now, of course, some would rightly say that, in response to that, FISA was changed to include physical searches.
And so the question is — again, that queues up, I think, a difficult constitutional issue, whether or not — can the Congress constitutionally restrict the ability of the president of the United States to engage in surveillance of the enemy during a time of war?
GONZALES: And, fortunately, I don’t think we need to answer that question. I think in this case the Congress has authorized the president to use all necessary and appropriate force, which would include the electronic surveillance of the enemy.
SESSIONS: But Deputy Attorney General Gorelick in the Clinton administration, defending these searches, she asserted it was a constitutional power of the president, and this was in a period of peace, not even in war. Isn’t that correct?
GONZALES: That’s correct.
UPDATE VI
There was another “statement out of context” type exchange between Gonzales and Feingold that you can find on page 77. Check it out, quite funny. The part I wanted to highlight was when Gonzales is asked about wiretapping DOMESTIC calls, why I do not know, but it’s Feingold afterall:
FEINGOLD: Isn’t it true that the Supreme Court first found that phone conversations are protected by the Fourth Amendment in the 1967 Katz case?
GONZALES: Yes. In the 1967 Katz case, the Supreme Court did find that telephone conversations are covered by the Fourth Amendment.
FEINGOLD: So when the Justice Department points to Presidents Wilson and Roosevelt’s actions, those are really irrelevant, aren’t they?
GONZALES: Absolutely not, Senator. I think that they’re important in showing that presidents have relied upon their constitutional authority to engage in warrantless surveillance of the enemy during a time of war.
The fact that the Fourth Amendment may apply doesn’t mean that a warrant is instantly required in every case, as you know. There is a jurisprudence of the Supreme Court regarding special needs, normally in the national security context, outside of the ordinary criminal law context, where, because of the circumstances, searches without warrants would be justified.

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Ooh Rah! Real.
I’m about halfway done with the transcript and the AG has held himself well. Just like update VI where he tells them what ANY lawyer should know. There are many exceptions to the 4th Amendment. Not that this amendment is related to the wiretaps in any way, shape, or form.
Great analysis. Especially update VI which has the AG agreeing with me! Semper Fi!