« The Coming War with Iran... | Main | Belmont Club on the Cartoon Crisis... »
February 06, 2006
Attorney General Gonzales defends the NSA's International Surveillance
Attorney General Gonzales did an able job of defending the Bush Administration's authorization of the NSA's surveillance of Al Qaeda over the last four years. You can read an informed discussion of his points here at Powerline Blog.
The part which really hit me like a ton of bricks was a statement he made in response to a question from Senator Feinstein. She asked him where the administration found "escape hatches" from the FISA act because she could only find two, and neither one applied.
He responded by saying that Section 109 of the act talked about other surveillance that was authorized by statuate. The administration interperted this to mean that the Congressional authorization for the use of force against Al Qaeda was exactly the sort of statuate the act reffered to.
Then he dropped his bombshell: This, he said, was a reasonable interpretion of the act. The other interpretation of the act lead (in their opinion) to a constitutional "tension" between the law passed by Congress and the inherent powers of the President as defined by the Constitution. He said a fundemental principle of law in this country is that IF there are two reasonable interpretations of a law, and one of them leads to a constitutional conflict THEN THE OTHER interpretation is ASSUMED to be the correct one.
So, to decode this exchange, Feinstein asserts "how can you say you are following the law when the FISA act doesn't talk about exceptions like the President has authorized?
Gonzales responds "Look, there are two ways of looking at this law. One is that this law, FISA, severly limits the power of the President in ways that no previous presidents have been limited. This would be the 'constitutional crisis' way of looking at the law. The other way is the way we have choosen which is, the law is fine as it is, but the law admits that other statues (such as Congressional authorization for the use of force) can override FISA. This interpretation does not provoke a constitutional crisis and so this interpretation must be the correct one."
In my opinion, this is a very clever arguement which has a lot of merit. It is also a facinating deep issue in Constitutional law.
Posted by rakhier at February 6, 2006 12:23 PM