Published: May 17, 2007

There were many fascinating threads to the testimony on Tuesday by the former deputy attorney general, James Comey, who described the night in March 2004 when two top White House officials tried to pressure an ailing and hospitalized Attorney General John Ashcroft into endorsing President Bush's illegal wiretapping operation.

But the really big question, an urgent avenue for investigation, is what exactly the National Security Agency was doing before that night, under Mr. Bush's personal orders. Did Mr. Bush start by authorizing the agency to intercept domestic e-mails and telephone calls without first getting a warrant?

Mr. Bush has acknowledged authorizing surveillance without a court order of communications between people abroad and people in the United States. That alone violates the 1978 Foreign Intelligence Surveillance Act. Domestic spying without a warrant would be an even more grievous offense.

The question cannot be answered because Mr. Bush is hiding so much about the program. But whatever was going on, it so alarmed Mr. Comey and F.B.I. Director Robert Mueller that they sped to the hospital, roused the barely conscious Mr. Ashcroft and got him ready to fend off the White House chief of staff, Andrew Card, and Mr. Bush's counsel, Alberto Gonzales. There are clues in Mr. Comey's testimony and in earlier testimony by Mr. Gonzales, Mr. Ashcroft's successor, that suggest that Mr. Bush initially ordered broader surveillance than he and his aides have acknowledged.

Mr. Comey said the bizarre events in Mr. Ashcroft's hospital room were precipitated by a White House request that the Justice Department sign off on a continuation of the eavesdropping, which started in October 2001. Mr. Comey, who was acting attorney general while Mr. Ashcroft was ill, refused. Mr. Comey said his staff had reviewed the program as it was then being run and believed it was illegal.

So someone at the White House (and Americans need to know who) dispatched Mr. Gonzales and Mr. Card to Mr. Ashcroft's hospital bed. Mr. Ashcroft flatly refused to endorse the program, Mr. Comey said. Later, he said, Mr. Bush agreed to change the wiretapping in ways that enabled Justice to provide a legal rationale. Mr. Comey would not say why he opposed the original program - which remains secret - or how it was changed.

With the benefit of Mr. Comey's testimony, we can see how Mr. Gonzales, in his effort to mislead the Congress and confuse the American public about how much their civil liberties were being violated, may have unintentionally given away vital clues that only now are falling into place.

While testifying before the Senate Judiciary Committee in February 2006, Mr. Gonzales was asked if Mr. Comey had expressed reservations about the eavesdropping program. Mr. Gonzales replied, "There has not been any serious disagreement about the program that the president has confirmed." By that, he must have meant the program that included modifications made after the hospital visit and after Mr. Comey's meeting with Mr. Bush.

Pressed by Senator Charles Schumer, Democrat of New York, Mr. Gonzales said Mr. Comey's concerns "dealt with operational capabilities" that were not part of the program Mr. Bush has acknowledged. Mr. Gonzales would not describe those capabilities, of course. Yesterday, Mr. Schumer wrote Mr. Gonzales and asked him to reconcile Mr. Comey's account with his own.

The Republican-controlled Congress did a disservice to the nation by refusing to hold Mr. Bush to account for the illegal wiretapping. The current Congress should resume a vigorous investigation of this egregious abuse of power.

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Editor's Note | Senator Feingold delivered the following statement today prior to a 10-8 vote sending the Gonzales nomination to the full Senate. All 8 Democrats on the Judiciary Committee voted against Gonzales. -smg

Senator Russ Feingold: 'Alberto Gonzales

Lacks Respect for the Rule of Law'

By Russ Feingold

t r u t h o u t | Statement

Wednesday 26 January 2005

Statement of U.S. Senator Russ Feingold at the Senate Judiciary Committee on the nomination of Alberto Gonzales to be Attorney General of the United States.

Mr. Chairman, the decision on whether to vote to confirm Alberto Gonzales to be the next Attorney General of the United States has been difficult. As all of my colleagues on this Committee know, I believe that Presidents are entitled to a great deal of deference in their cabinet nominations. I have voted in favor of a number of this President's nominees, including the current Attorney General, with whom I had serious disagreements on matters of policy and general ideology. My votes may not have always pleased my political supporters, or my party's leadership. But in carrying out my part in the constitutional scheme, as one who is asked to advise on and consent to a President's nominations, I am guided by my conscience, and by the history and practices of the United States Senate. Rejecting a cabinet nominee is a very rare event. The decision to do so must never be taken lightly.

Mr. Chairman, I have reached the conclusion, after a great deal of thought and careful consideration, that I cannot support Judge Gonzales's nomination. Let me take a few minutes to explain my decision.

The Attorney General of the United States is the nation's chief law enforcement officer. The holder of that office must have an abiding respect for the rule of law. A formative experience for me, and for many of my generation, was the Watergate scandal, and particularly the Saturday Night Massacre on October 20, 1973. On that night, Attorney General Elliot Richardson and his deputy William Ruckelshaus both resigned from office rather than carry out President Nixon's order to fire special prosecutor Archibald Cox. Those acts of courage remain for me a shining example of the role that the Attorney General plays in our government. They give me the unshakeable conviction that his or her ultimate allegiance must be to the rule of law, not to the President.

As Judge Gonzales himself said as he stood next to the President on the day he was nominated: "The American people expect and deserve a Department of Justice guided by the rule of law." I am pained to say, Mr. Chairman, that Mr. Gonzales' performance as White House Counsel and, particularly, his appearance before this Committee and his responses to our questions, have given me grave doubts about whether he meets that test. Judge Gonzales too often has seen the law as an obstacle to be dodged or cleared away in furtherance of the President's policies.

Judge Gonzales has held the position of White House Counsel since the beginning of this Administration and through a very difficult and challenging period in our history. The response of the Administration to the September 11th attacks and the launch of the war on terrorism have brought some very difficult legal issues to his desk. Some of these issues touch on the very core of our national identity. What kind of nation are we going to be during times of war? How will we treat those we capture on the battlefield? How will we live up to our international treaty obligations as we wage this war?

Time after time, Judge Gonzales has been a key participant in developing secret legal theories to justify policies that, as they have become public, have tarnished our nation's international reputation and made it harder, not easier, for us to prevail in this struggle. He requested and then disseminated the infamous Office of Legal Counsel ("OLC") memo that for almost two years, until it was revealed and discredited, made it the position of the government of the United States of America that the International Convention Against Torture, and statutes implementing that treaty, prohibit only causing physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Under that standard, the images from Abu Ghraib that revolted the entire world would not be considered torture, nor, according to some, would the shocking interrogation technique called "waterboarding."

Judge Gonzales advised the President that he could declare the entire legal regime of the Geneva Conventions inapplicable to the conflict in Afghanistan. Secretary of State Powell rightly pointed out the danger of this course, but Judge Gonzales persisted. This theory could actually have given greater legal protection to terrorists, by taking away a key part of the legal regime under which war crimes can be prosecuted. The idea that the Geneva Conventions protect terrorists who commit war crimes, which Judge Gonzales repeated in his hearing, is a dramatic misunderstanding of the law, and it was very troubling to hear it from the person who would coordinate our legal strategy in the war on terrorism.

Judge Gonzales was also an architect of the Administration's position on the legal status of those it called "enemy combatants," a position that was soundly rejected by the Supreme Court of the United States last year.

In all of these areas, Judge Gonzales served as the President's lawyer, and facilitated the President's policies. I believe that he failed the President and the nation badly. But these past mistakes need not have been conclusive in my assessment of his suitability for the office of Attorney General. For example, I also have serious concerns about the role that the national security adviser, Dr. Condoleezza Rice, played in crafting and implementing the Administration's badly flawed foreign policy. But I do not think that taking part in a policy I strongly oppose is sufficient grounds for me to oppose a cabinet nomination. As I have indicated, the President - any President - is entitled to be advised by those who share his beliefs and confidence.

Had Judge Gonzales in his testimony before this Committee recognized the serious problems with the judgments he made on these issues and given convincing assurances that he understands that his new role will require a different approach and a new allegiance to the rule of law, I might have been convinced to defer to the President once again. Attorney General Ashcroft, for example, was unequivocal in expressing his commitment, under oath, to enforcing laws with which he disagreed as a Senator.

But Judge Gonzales's appearance before the Committee was deeply disappointing. When given the opportunity under oath to show that he would be adequately committed to the rule of law as our nation's chief law enforcement officer, he failed to do so. He indicated that the infamous OLC torture memo is no longer operative, but that he does not disagree with the conclusions expressed in it. He reiterated erroneous interpretations of the effect that applying the Geneva Conventions to the war on Afghanistan would have on the treatment of members of Al Qaeda captured in combat. Most disturbingly, he refused time after time to repudiate the most far-reaching and significant conclusion of the OLC memo - that the President has the authority as Commander-in-Chief to immunize those acting at his direction from the application of U.S. law.

This failure goes directly to the question of his commitment to the rule of law. Under our system of government, the Attorney General of the United States may be called upon to investigate and even prosecute the President. We cannot have a person heading the United States Department of Justice who believes that the President is above the law. I and other members of the Committee questioned Judge Gonzales closely about this issue. He hid behind an aversion to hypothetical questions, he conjured up his own hypothetical scenarios of unconstitutional statutes, but he simply refused to say, without equivocation, that the President is not above the law.

On the torture issue in particular, Judge Gonzales repeatedly told us that he opposes torture and that the President has never authorized torture. Thus, he indicated, the question of whether the President acting as Commander in Chief can authorize torture has never and will never come up. I certainly hope that we can rely on those assurances, but the Founders of this nation designed a system where even the President is bound by our laws - precisely so that we wouldn't have to rely on trust alone that the President will act in accordance with them. I think this Committee, and the American people, deserved to hear whether the next Attorney General agrees that the President has the power to disobey laws as fundamental to our national character as the prohibition on torture. Judge Gonzales refused to address this question unequivocally, and that left me deeply troubled.

Mr. Chairman, Judge Gonzales has a compelling personal story, and many fine qualities as a lawyer. If he is confirmed by the Senate, there are many issues on which I hope we can work together for the good of the country. But I cannot support his nomination. Not because he is too conservative, or because I disagree with a specific policy position he has taken, but because I am not convinced that he possesses the abiding respect for the rule of law that our country needs in these difficult times in its Attorney General. I will vote No. Thank you Mr. Chairman.

http://www.truthout.org/docs_05/012705X.shtml

Published: March 11, 2007

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held - President Bush's in-house lawyer - and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.

He has never stopped being consigliere to Mr. Bush's imperial presidency. If anyone, outside Mr. Bush's rapidly shrinking circle of enablers, still had doubts about that, the events of last week should have erased them.

First, there was Mr. Gonzales's lame op-ed article in USA Today trying to defend the obviously politically motivated firing of eight United States attorneys, which he dismissed as an "overblown personnel matter." Then his inspector general exposed the way the Federal Bureau of Investigation has been abusing yet another unnecessary new power that Mr. Gonzales helped wring out of the Republican-dominated Congress in the name of fighting terrorism.

The F.B.I. has been using powers it obtained under the Patriot Act to get financial, business and telephone records of Americans by issuing tens of thousands of "national security letters," a euphemism for warrants that are issued without any judicial review or avenue of appeal. The administration said that, as with many powers it has arrogated since the 9/11 attacks, this radical change was essential to fast and nimble antiterrorism efforts, and it promised to police the use of the letters carefully.

But like so many of the administration's promises, this one evaporated before the ink on those letters could dry. The F.B.I. director, Robert Mueller, admitted Friday that his agency had used the new powers improperly.

Mr. Gonzales does not directly run the F.B.I., but it is part of his department and has clearly gotten the message that promises (and civil rights) are meant to be broken.

It was Mr. Gonzales, after all, who repeatedly defended Mr. Bush's decision to authorize warrantless eavesdropping on Americans' international calls and e-mail. He was an eager public champion of the absurd notion that as commander in chief during a time of war, Mr. Bush can ignore laws that he thinks get in his way. Mr. Gonzales was disdainful of any attempt by Congress to examine the spying program, let alone control it.

The attorney general helped formulate and later defended the policies that repudiated the Geneva Conventions in the war against terror, and that sanctioned the use of kidnapping, secret detentions, abuse and torture. He has been central to the administration's assault on the courts, which he recently said had no right to judge national security policies, and on the constitutional separation of powers.

His Justice Department has abandoned its duties as guardian of election integrity and voting rights. It approved a Georgia photo-ID law that a federal judge later likened to a poll tax, a case in which Mr. Gonzales's political team overrode the objections of the department's professional staff.

The Justice Department has been shamefully indifferent to complaints of voter suppression aimed at minority voters. But it has managed to find the time to sue a group of black political leaders in Mississippi for discriminating against white voters.

We opposed Mr. Gonzales's nomination as attorney general. His résumé was weak, centered around producing legal briefs for Mr. Bush that assured him that the law said what he wanted it to say. More than anyone in the administration, except perhaps Vice President Dick Cheney, Mr. Gonzales symbolizes Mr. Bush's disdain for the separation of powers, civil liberties and the rule of law.

On Thursday, Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, hinted very obliquely that perhaps Mr. Gonzales's time was up. We're not going to be oblique. Mr. Bush should dismiss Mr. Gonzales and finally appoint an attorney general who will use the job to enforce the law and defend the Constitution.

Tips

Attorney General Gonzales asserted to the amazement of the Senate Judiciary Committee that the Constitution does not guarantee the right of habeas corpus to American citizens or others in this country. Liberal and conservative legal scholars quickly took issue with Gonzales's statement.

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/01/24/MNGDONO11O1.DTL Gonzales Denies Constitutional Right to Habeus Corpus

"Already Attorney General Alberto R. Gonzales is making some liberals pine for John Ashcroft. Gonzales has stonewalled Congress on the extent of electronic surveillance, raided a congressional office and, for good measure, raised the possibility of prosecuting journalists, including some at the New York Times for publishing classified information. Far from blunting his impulses for over reaching, his post at the Justice Department seems to have whetted them.

"...Gonzales has taken an elastic view of the law ever since he began working for George W. Bush in Texas...(Minutaglia) has amassed a wealth of information that suggests Gonzales is less a conservative ideologue than a diligent subordinate whose only principle is abject fealty to Bush..." [i.e. a Mexican lawn jockey or, if you prefer an "Uncle Tom."]...

"The Bush family became Gonzales's new family....he molded himself into the perfect retainer. Entrusted with family secrets like Bush's drunken driving conviction in 1978 in Maine, he would show up in 1996 at the Travis County Courthouse to shield Bush from having to serve on a jury considering a drunken driving case, which might have exposed bush to embarrassing questioning. Then there were the 57 cursory death penalty memos that Gonzales cranked out, which skated over mitigating circumstances. Bush and Karl Rove, in turn, orchestrated Gonzales's rise, making him state secretary, then a Texas State Supreme Court justice, even though he had no judicial experience...."

[Click on the link below for the complete review of Minutaglia's book.

9-13 KEY SENATE REPUBLICANS DON'T BUY BUSH'S PROPOSALS FOR DETAINEES; POWELL WEIGHS IN AGAINST THEM ALSO. FRIST SUPPORTS BUSH'S PROPOSALS

Warner, McCain, Graham develop alternate proposal. Powell weighs in against Bush's proposal, but Frist hangs with Bush. (See linked article below.)