( - the combination of both, of course, being the perfect skill set for serving in this administration- o.h.)
Ahh, good times, good times . . .
I remember well my first Recommended diary here at dKos -
It was a simpler time then. Only about 2,000 American soldiers had died in Iraq. The Republicans controlled both houses of Congress along with the White House, had just seated a new Supreme Court chief justice and were about to nominate a second justice to the Court. George Allen was a front-runner for the 2008 Republican presidential ticket, and Cindy Sheehan was an extreme left-wing fringe lunatic with her views on Iraq -
- and, in light of brand-new revelations at that time about the administration’s flouting of FISA in authorizing illegal warrantless spying on Americans, it had become evident that Gonzales had lied to Congress during his confirmation hearings before the Senate Judiciary Committee. Come along as we skip backward in time to December 2005, to a diary written about a hearing that took place in January 2005 . . .
Indeed, in Gonzales's Senate confirmation hearings, Russ Feingold tried to engage him on the question of presidential powers during wartime, primarily as it related to treatment of detainees, but also peripherally with respect to surveillance. I'll quote here at some length, because I believe Feingold's carefully worded framework is important to the question, and its (eventual) response (emphases added):
SEN. FEINGOLD: [A]s I understand your answer so far you have said there may be a situation where the president would believe a statute is unconstitutional and would therefore refuse to comply with it, but would abide by a court's decision on its constitutionality. You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal actions.
So what I want to do is press you on that because I think perhaps you've misunderstood the question, and it's an important one. It goes to a very basic principle of the country: that no one, not even the president of the United States, is above the law. Of course, the president is entitled to assert that an act of Congress is unconstitutional.
This president did so, for example, with respect to some portions of our McCain-Feingold bill when he signed it. But his Justice Department defended the law in court, as it is bound to do with every law duly enacted by the Congress. And his campaign and his party complied with the law while a court challenge was pending. No one asserted that the president has the power to ignore a law that he thought was unconstitutional.
The question here is what is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional. It's about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative, and my colleagues and I would like your answer on that today. And I also would like you to answer this: does the president, in your opinion, have the authority acting as commander in chief 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?
MR. GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it's been rejected by the executive branch. I categorically reject it. And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture.
(Okay, don't get me started on the "does not engage in torture and will not condone torture" line; let's stick to the subject at hand.)
So Feingold restates the question: Does the President have the power as Commander in Chief to order violations of the law? To which Gonzales evades:
MR. GONZALES: <snip> I can say, is that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes.
And then, in the next breath, he continues, in complete contradiction to the oath he asserts that he will take to defend the statutes,
And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.
Feingold, not missing anything, says,
SEN. FEINGOLD: Well, that sounds to me like the president still remains above the law.
Here, Feingold and Gonzales get to the meat of the question.
MR. GONZALES: No, sir. <snip> The president is not above the law. Of course he's not above the law. But he has an obligation, too. He takes an oath as well. And if Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now, I think that that would be –
SEN. FEINGOLD: I recognize that, and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.
MR. GONZALES: Senator, this president is not -- I -- it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
There's the money quote. After all that dancing around, Gonzales finally flat-out lies and says the President does not tell people (e.g., the NSA) to violate the law. This is after Gonzales had presumably advised the President to do just that, and after the president had, presumably, ordered numerous times that just such violations be committed, on Gonzales's advice.
So - doesn't Gonzales's testimony, in light of all that has happened since, constitute making false statements to Congress? I'm no lawyer, but it would seem to me that the Senate would not take kindly to that kind of prevarication.
I mean, it's one thing if you're an oil industry executive, and the chairman of the Commerce, Science and Transportation Committee doesn't swear you in, and then you lie to the Senate; it's quite another if you're applying to be the top law enforcement official of the United States of America, and you have just misrepresented a material fact regarding your advice to, and the actions of, the chief executive of that same United States of America, with respect to the violation of a long-standing law passed by that very same Senate and signed by the President of that very same United States of America.
In my previous diary, mph2005 was kind enough to cite some pertinent portions of the U.S. Code with respect to these questions. First, Section 1515 deals with the definition of "corruptly," a word that applies in the next section cited (all emphases added):
(b) As used in section 1505, the term corruptly means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
Section 1505 addresses obstruction of proceedings before committees:
Whoever corruptly, [. . .] influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress [. . .] Shall be fined under this title or imprisoned not more than five years, or both.
Finally, Section 1001 has to do with making false statements:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation [. . .] shall be fined under this title or imprisoned not more than 5 years, or both.
(c) With respect to any matter within the jurisdiction of the
legislative branch, subsection (a) shall apply only to--
[ . . . ]
(2)any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.
Is it just me, or does it look like our attorney general made false statements to Congress?
Okay, so that covers the "felon" part.
Now, about that "idiot" label –
Well, given that Mr. Gonzales is adamant about habeas corpus not being guaranteed in the Constitution, I’d say that is a settled question.
Gee – what’s next?