If the Democrats want to fire Alberto Gonzales, why give him massive new eavesdropping powers?

The law, lawyers, and the court.
Aug. 7 2007 5:52 PM

In Gonzo We Trust

They want to fire Alberto Gonzales and give him new eavesdropping powers?

Alberto Gonzales. Click image to expand.
Attorney General Alberto Gonzales

Happy six-month anniversary, U.S. attorney scandal! (And what do you get for the scandal that has everything?)

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The half-birthday of the purge scandal's explosion onto the front pages last February brings a new round of attempts to explain how Attorney General Alberto Gonzales is still collecting a government paycheck. Having taken several whacks at this puzzle myself, I appreciate the recent efforts of Massimo Calabresi, Tom Raum, Sidney Blumenthal, Dan Eggen and Amy Goldstein, the Economist, Ramzy Baroud, and the Artful Dodger. Each of these writers offers some variation on the theme that George Bush hangs on to Gonzales because the president is one or all of the following: 1) stubborn; 2) loyal; 3) terrified of the investigation and/or confirmation hearing that would follow from a Gonzales departure. They also frequently note that Gonzales is one or all of the following: 1) stubborn; 2) loyal; 3) conveniently and hilariously blundering; 4) the last line of defense between Karl Rove and the truth about what's gone on at the White House in the last six years.

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Let's say we can all now agree about why Gonzales still puts on a coat and tie every morning. The better question remains, why do Democrats in Congress allow him to keep his job? Why don't they impeach him, as urged by the New York Times? Why not censure him, as Sen. Russ Feingold, D-Wis., is now urging? My friend Ben Wittes argues that Congress can "exert budgetary pressure on all non-essential administration priorities for the department" and "decline to confirm any Justice Department nominees" if they really want to show him the door. A Democrat-controlled Congress that truly wanted Gonzales gone has options beyond the mere rending of garments and pulling of hair. But thus far, Congress has declined to force the issue.

The best and most comprehensive explanation for this has always been that they are gutless. They won't go after the attorney general without a "smoking gun" in hand, and—in light of the White House's policy of obfuscation, delay, and rampant claims of executive privilege—that smoking gun will materialize only if it is hand-delivered by some winged pink angel with an impressive security clearance.

There's another explanation for the timidity of congressional Democrats. As an article in today's Los Angeles Times by Peter Wallsten and Richard B. Schmitt observes, the dustup over Gonzales is proving invaluable to Democrats in an election year. The spectacle of Bush clinging desperately to an inept and untruthful AG is just about a campaign commercial in itself. Why impeach/censure/defund the hand that feeds you? The day Gonzales steps down is the day Democrats must hustle to find a new issue.

There is, however, a real cost to the Democrats' strategy of pounding away at the attorney general purely for sport. The AG's dwindling crew of cheerleaders have been claiming that this was the case for months, insisting this scandal has become an empty witch hunt. That argument is starting to look like it may have some merit. It was bad enough when congressional Democrats wanted to complain about Gonzales without actually doing anything. But now they appear to want to complain about him while handing him a big fat increase in his spying authority.

This past Sunday, a heap of Democrats voted to rush through changes to the 1978 Foreign Intelligence Surveillance Act, the law that governs electronic surveillance of anyone in this country.  The new law expands the authority of the attorney general to approve the monitoring of phone calls and e-mails to suspected overseas terrorists from unknowing American citizens. Make no mistake about it. The vote to update FISA rewarded the AG for years of missteps and misstatements by giving him expanded authority to enforce the president's alarming constitutional vision. Sans oversight. Sans judicial approval. 

There is virtually no way to reconcile Sen. Mark Pryor's, D-Ark., claim that Gonzales has "lied to the Senate" and needs to go with his vote to expand the reach of our warrantless eavesdropping program. And how can one possibly square Sen. Dianne Feinstein's, D-Calif., claim that the AG "just doesn't tell the truth" with her vote to give him yet more unchecked authority? You either trust this AG with the power to listen in on your phone calls or you do not, and the mumbled justifications for these "yes" votes (… but Gonzales shares his authority with National Intelligence Director Mike McConnell; … but the bill sunsets in six months) do nothing to lessen the impression that some Democrats mistrust Gonzales when it's convenient, but not when it's truly important.

Imagine that the Democrats had been hollering for the past six months that Gonzales was an out-of-control drunk. With their eavesdropping vote, they've handed him the keys to a school bus. Nobody was forcing these Democrats to impeach or censure the AG. But this warm pat on the back they have offered him is beyond incredible.

With this FISA vote, the Democrats have compromised the investigation into the U.S. attorney scandal. They've shown themselves either to be participating in an empty political witch hunt or curiously willing to surrender our civil liberties to someone who has shown—time and again—that he cannot be trusted to safeguard them. The image of Democrats hypocritically berating the attorney general with fingers crossed behind their backs is ultimately no less appalling than an attorney general swearing to uphold the Constitution with fingers crossed behind his own.