"This is really not a good way to begin these hearings," Senate judiciary committee Chairman Arlen Specter, R-Pa., sighed this morning, only a few minutes after he opened them. Specter was talking about the kerfuffle over whether to swear in Attorney General Alberto Gonzales before his testimony. But he could have been talking about the parameters he had agreed to for the hearing: No witnesses other than Gonzales. No new details of the National Security Agency spying program that the committee was supposed to be inquiring about. No request for the Justice Department's internal legal memorandums about the legality of the NSA program.
Given the box Specter constructed for the hearings, what could be learned from them? Actually, the day was pretty instructive, not on the topics of spying or national security, but on the bizarre embrace into which the legislature and the executive have locked themselves since Sept. 11. Congress claims that it wants to exercise its war powers and help set rules for NSA spying—but in fact it's afraid to, for fear of appearing to undermine the president. And the Bush administration acts like it wants to undo the Foreign Intelligence Surveillance Act—but it fears the public uproar that amending the act would create.
The fuss over whether Gonzales should testify under oath seemed to be about the possibility, at least in Specter's mind, that the attorney general was about to say something that could get him into trouble for lying. Gonzales had been sworn in when he testified twice before, as have other Department of Justice officials. Today, though, Specter said such an oath was "unwarranted" (though Gonzales had agreed to take it). Specter cited the federal-code provisions for perjury and for making a false statement to Congress, mentioned the prosecutions of Oliver North and Adm. John Poindexter, and alluded to accusations that Gonzales had made past statements to the Senate, during his confirmation hearing, that are at odds with his defense of the president's authorization of the NSA wiretaps. (At his confirmation hearing, Gonzales demurred when he was asked by Sen. Richard Durbin, D-Ill., whether the president had ever invoked his authority "to conclude that a law was unconstitutional, and refused to comply with it." Gonzales would have known because at the time, he was White House counsel.)
The Democrats wanted Gonzales sworn in. They made Specter take a roll-call vote, and he had to vote on behalf of two absent Republican senators to break a tie. "Mr. Chairman, I request to see the proxies given by the Republican senators," Sen. Russ Feingold, D-Wis., piped up. That led to Specter's hand-wringing and a speech by Sen. Jeff Sessions, R-Ala., about "propriety and good taste and due respect from one branch to the other." Everyone seemed to be rolling up their sleeves for a partisan square-off.
But then some of the Republicans changed their stance. They seemed more worried about a loss of senatorial power than about fighting with the Democrats. And that meant taking issue with Gonzales' theory of executive authority. According to the Justice Department, the specifics of FISA are trumped by the generality of the Authorization to Use Military Force. After Sept. 11, Congress said the president should "use all necessary and appropriate force" against al-Qaida and other terrorist organizations, and that includes warrantless eavesdropping at home as well as abroad. As the president reads it, the AUMF is a bad deal for Congress. It takes Congress out of the war on terror, perhaps forevermore.
Sen. Lindsey Graham of South Carolina was one of the Republicans who wasn't going for it. "When I voted for [the AUMF], I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche," he said. "I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far." Gonzales said he understood Graham's concern. But he didn't budge—how could he? Specter also had a question that Gonzales didn't want to answer. "Why not take your entire program to the FISA court within the broad parameters of what is reasonable and constitutional and ask the FISA court to approve it or disapprove it?" Specter asked. Gonzales muttered something about commending the FISA court for its service. "Now on to my question," Specter prodded. "What do you have to lose if you're right?" Gonzales promised that the administration is "continually looking at ways that we can work with the FISA court in being more efficient and more effective in fighting the war on terror." And then Specter let him off the hook. There was a time—remember when Anita Hill was in the witness chair?—Specter loved to strut his prosecutorial stuff. But now he's got a president who doesn't like him much and a chairmanship to protect.
Sen. Edward Kennedy, like other Democrats, took the tack of a spurned lover. He spoke longingly of the Republican administration that was in office when Congress drafted FISA in the late 1970s and then said plaintively, "They came down and worked with us on FISA. … Why didn't you follow that kind of pathway, which was so successful?"*
Gonzales' answer wasn't what most of the senators wanted to hear. "We didn't think we needed to, quite frankly," the attorney general said. Take that, co-equal branch. Then Gonzales treated his audience to the odd sight of the administration as FISA champion. The FISA statute has been a "wonderful tool," Gonzales said fervently. So wonderful, in fact, that not one hair on its legal head should be touched. "I don't know that FISA needs to be amended per se," Gonzales told Sen. Orrin Hatch, R-Utah. At another point, the attorney general stressed the importance of FISA's "peacetime safeguards." The statute as a means of law enforcement? "I don't want these hearings to conclude with the idea that FISA hasn't been effective." The judges on the special FISA court? "Heroes who are killing themselves, quite frankly, to make themselves available to us." And so "when you're talking about amending FISA because FISA's broke, well, the procedures in FISA under certain circumstances I think seem quite reasonable."
Except, apparently, when they're not. Gonzales also called the law "cumbersome and burdensome," as the administration has many times previously. "Layers of lawyers" have to sign off on a warrant application. "But even this is not the end of the story." The government also has to put up with that annoyance, judicial review. Sure, the law gives the president 72 hours after conducting a search to apply for a warrant. But the lawyers still have to write up all those tedious legal briefs. "All of these steps take time. Al-Qaida, however, does not wait." To do what exactly—keep talking on phone lines that have already been tapped?
Gonzales' dance on FISA—it's the best of laws; it's the worst of laws—makes the administration's defense of the NSA program seem all the more like a power grab. The most important thing isn't to make sure that the agency has undisputed legal authority to spy as it says it needs to. It's to make sure that Congress doesn't tell the president what he can and can't do. So, what's a responsible lawmaker to do? More than hold a one-day hearing. If Congress doesn't take back some of its war powers soon, there won't be anything left to fight over.
But while Republicans like Graham and Specter talk tough at times, they're not really up for the fight. And it's not entirely clear that the Democrats are, either. How should FISA be amended? Where do you draw the line to protect civil liberties while allowing all the searches that could ever snare a potential terrorist? Those are hard questions—too hard for Congress, it seems. You have to hand it to Bush and Gonzales. They don't have much to work with, legally speaking. But they're playing the politics just right.
Correction, Feb. 8, 2006: The original sentence stated that a Republican administration was in office when Congress drafted and passed FISA. President Gerald Ford, a Republican, was in office when FISA was drafted and introduced in 1976, but Democrat Jimmy Carter was president when the law passed in 1978. Return to the corrected sentence.