Reading through the transcript
of Attorney General Gonzales's testimony and reflecting on the utter ineptitude of our nation's top lawyer, I feel almost sorry for Gonzales. Almost:
BIDEN: How will we know, General, when this war it over?
GONZALES: I presume the straightforward answer, Senator, is that when Al Qaida is destroyed and it no longer poses a threat to the United States.
Whenever that may be, we know it's not today. We know we're still at war today. We know we'll probably be at war still tomorrow. And so we know it still continues today.
BIDEN: The truth is, there is no definition of when we're going to know whether we've won, because Al Qaida, as the president points out, has mutated into many other organizations that are not directly dealing with bin Laden and are free agents themselves.
BIDEN: Is that correct?
GONZALES: It is certainly true that there are a number of terrorist groups who share many of the same objectives of Al Qaida in terms of destroying America.
BIDEN: So as long as any of them are there, I assume you would assert you have this plenary authority.
GONZALES: Well, Senator, obviously if Congress were to take some kind of action, and say the president no longer has the authority to engage in electronic surveillance of the enemy, then I think that would put us into the third part of Justice Jackson's three-part test, and that would present a much harder question as to whether or not the president has the authority.
Putting aside the Rumsfeldian "known unknowns" aspect of Gonzales's interpretation of the WoT, um, didn't Congress "take some kind of action" and explicitly say that "the president no longer has the authority to engage in electronic surveillance of the enemy" when it enacted FISA?
That's what happens when you spin like crazy, folks. Sometimes, you end up bumping up against the facts.
Update: Correction, as noted below. I should have been more clear in my post.I should have stated that FISA took away the President's ability to unilterally conduct warrantless surveillance in the United States for the purposes of foreign intelligence. FISA, of course, does not completely prohibit the President from engaging in electronic surveillance. FISA essentially regulates the way the Executive Branch may conduct that surveillance within the United States.
My point about Gonzales remains. On the one hand, he claims that the President is king and cannot be constrained by Congressional action in a time of war, and on the other hand, he testified at the hearing that congressional enactments CAN indeed limit the President's authority.
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