Two weeks ago I noted that there was no possible rationale by which, if international calls needed to be monitored without a warrant, that domestic calls wouldn't be as well. At the time, I hadn't seen anyone else draw that conclusion. But either they had, or someone's been reading
Left I on the News, because the subject came up several times in yesterday's hearings. And the discussion was
very instructive. And the common assumption that Gonzales denied the existence of warrantless domestic surveillance in his testimony is quite wrong.
The Washington Post summed up the discussion in a way that was common throughout the media:
Gonzales also suggested in testimony before the Senate Judiciary Committee that the administration had considered a broader effort that would include purely domestic telephone calls and e-mail but abandoned the idea in part due to fears of the negative public reaction.
"Think about the reaction, the public reaction that has arisen in some quarters about this program," Gonzales told Sen. Herb Kohl (D-Wis.). "If the president had authorized domestic surveillance as well, even though we're talking about al Qaeda-to-al Qaeda, I think the reaction would have been twice as great. And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans."
But a careful reading of the transcript suggests that that isn't exactly what Gonzales had to say on the subject.
Consider [emphasis added]:
SEN. BIDEN: As I understand your reasoning, I don't understand why you would limit your eavesdropping only to foreign conversations -- in other words, Al Qaida communicating from Algeria -- I'm making it up -- or from France or Germany, wherever, to the United States.
That's the assertion. It's only emanating from a foreign country, correct?
GONZALES: Yes, sir: authorization of the program I'm talking about.
...
SEN. 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.
SEN. 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.
GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.
And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.
KOHL: I appreciate that.
And before I turn it back to the -- but yet the president has said with great justification, he's going to protect the American people regardless.
KOHL: And if there's some criticism, he'll take the criticism.
And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?
GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
...
[and, we note, some Senators clearly indicated their desire that the program include "purely domestic" surveillance]
SEN. KYL: And certainly the president wouldn't want to authorize such an activity unless he felt that he was on very sound legal ground.
On the other hand, there is no less reason to do it than there is to intercept international communications with respect to a potential terrorist warning or attack.
I see absolutely no reason in Gonzales' testimony to reach the conclusion that the
Post, or virtually all observers, have reached. Gonzales' clearly restricts his answers to "the program which I'm testifying about today." Given his past record of lying to Congress in his confirmation hearings, there is simply no reason to believe such lying (or "misleading") is not part of his current testimony, and no reason to believe that warrantless domestic surveillance is not already in place. It just appears from Gonzales' testimony that the Administration considers it a different "program" (i.e., has a different TLA) than the international one.
Update: One more exchange that belongs with the material above:
SEN. FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?
GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized.
Reprinted from Left I on the News