Spying, torture - - is it all hypothetical?

by Tim Grieve

Sen. Russ Feingold just called Alberto Gonzales on what he said was his "materially misleading" prior testimony about warrantless spying. The two men played to something like a draw, with each man putting his own gloss on Gonzales' confirmation hearing testimony and then drawing his own conclusions from it.
During Gonzales' confirmation hearing last year, Feingold asked the would-be attorney general whether he believed that the president has the power "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales dismissed the question then as "hypothetical."

At today's hearing, Feingold focused on the first part of his question to argue that it wasn't hypothetical at all: At the time he testified last year, Gonzales knew that the president had, in fact, authorized "warrantless wiretaps" of Americans' telephone conversations. In defense, Gonzales focused on the second part of the question instead: Yes, the president had authorized "warrantless wiretaps," but he hadn't done anything "in violation of the criminal and foreign intelligence surveillance statutes of this country." So asking about the power to engage in such a violation, Gonzales said, was in fact a "hypothetical" question.
Gonzales may have dodged Feingold's bullet, but he wasn't -- and isn't -- done yet. Sen. Lindsey Graham followed Feingold, and the questions from the South Carolina Republican put the lie to the spin that only Democrats are worried about an imperial presidency.

Graham went after both prongs of the administration's defense of the warrantless spying program. First, he dismissed out of hand the notion that Congress somehow implicitly authorized warrantless spying when it adopted its use-of-force authorization after 9/11, and he cautioned Gonzales about making such a "dangerous" argument: If the White House reads the use-of-force authorization too broadly, Graham said, future Congresses will be wary when future presidents come looking for authority to use force against enemies.

Graham then set his sights on the argument that the president has inherent authority as commander in chief to do what it takes to keep America safe. It's a fine theory, Graham said, but it's one that knows "no boundaries." If the Constitution allows the president to engage in wiretap in seeming contravention of the Foreign Intelligence Surveillance Act of 1978, doesn't the Constitution also allow the president to ignore the new law that prohibits the United States from engaging in torture? Graham put the question to Gonzales, but the attorney general wouldn't answer it, exactly, saying that the torture statute isn't the subject of today's hearings. Which is another way of saying, we suppose, that questions about it are "hypothetical."