Lost in the middle of a 4,000-word official transcript is a sworn statement that directly contradicts the major alibi Bush has been floating. Here's what Congress was told in 2002:
"Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year."
(Underlining is in the original.)
That declaration is found here: "Statement of Associate Deputy Attorney General David S. Kris, Before the Senate Judiciary Committee, Concerning the Foreign Intelligence Surveillance Act, Presented on September 10, 2002."
This is the Bush administration telling Congress (in the course of discussing certain relatively obscure details of the Patriot Act) the same crap Bush has told the public over the last few years: that wiretaps still required a warrant, because the Patriot Act didn't change anything in that regard. (Essential Bush transcripts are here. Also, this short video is indispensable, because it shows emphasis that a transcript cannot convey.)
When Bush's obvious deception is highlighted, the canonical defense is that Bush was ostensibly talking only about the Patriot Act. Of course that defense is like something out of Lewis Carroll (it's sort of like suggesting Bush said "wiretaps still require a warrant, except when they don't"). Nevertheless the defense is attempted.
But Kris's statement has some interesting characteristics, compared with Bush's similar statements. First, of course Kris was speaking under oath, addressing Congress. He is also a high-ranking administration lawyer making a highly detailed, lengthy statement about law, obviously carefully prepared and edited. Also, the statement is underlined in the official DOJ transcript, which indicates this was definitely not a careless, unconscious remark.
Most importantly, he's making a simple, direct, categorical statement that flies in the face of the alibi Gonzales is trying to sell us: that AUMF authorized the president to do something new.
Here's what Gonzales recently said:
"the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, ... unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."
That same pathetic argument is found in the letter DOJ sent to the Senate on 12/22 (pdf):
"The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance"
(The DOJ letter raises various other legal issues, e.g. regarding Article II. I won't address those issues here because they are well-covered elsewhere. It's important to notice that while Moschella's letter provides a variety of legal arguments, the AUMF argument is what was presented front and center by Gonzales, on 12/19. Gonzales also raised an Article II argument, but he made it obvious that this was secondary to his AUMF argument. Anyway, we should get used to hearing shifting rationales for the wiretaps, in much the same manner that the rationales for the Iraq war have continuously shifted.)
Back to what Kris said to the Senate. I'm sure all parties were highly aware that Kris was speaking exactly one day before the first anniversary of 9/11. In fact, Orrin Hatch said this: " The timing of this hearing -- one day before the first year anniversary of the attack on our country - could not be more telling." Indeed. Therefore when Kris used the phrase "at this time last year," he obviously meant "before 9/11." Of course this also means "before AUMF."
Kris swore before Congress that AUMF did not change the rules regarding who Bush was allowed to monitor. Recently Gonzales told us that AUMF did indeed change the rules regarding who Bush was allowed to monitor (and this same claim is also found in the DOJ letter).
Who's providing correct information, Kris or Gonzales? Because it obviously can't be both.
(Note: I think all the testimony from that hearing (9/10/02) is collected in this pdf.)