No Verify, No Trust

Andrew Cohen On The Justification For Domestic Spying

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Thirteen months ago, when then-White House counsel Alberto Gonzales came before the Senate Judiciary Committee for his confirmation hearing for the post of United States Attorney General, he was asked under oath whether the president could, in Sen. Russell Feingold's (D-Wis.) words, "authorize warrantless surveillance notwithstanding the foreign intelligence statutes of this country." At the time, of course, the National Security Agency's controversial warrantless domestic surveillance program was well under way. Gonzales knew it. But Committee members did not.

So what did Gonzales say back in January 2005? At the time, he told the committee: "It's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." That answer, Sen. Feingold now says, was "misleading" and designed to deflect the Senate's attention away from the existence of the program. "You could have answered the question truthfully," Feingold scolded Gonzales Monday. "You could have told the Committee that, yes, in your opinion, the president has that authority."

Gonzales shot back. "I told the truth then; I'm telling the truth now ... You asked about a hypothetical situation of the president ... authorizing electronic surveillance in violation of our criminal statutes. That has not occurred." Yes, Feingold, said, but you, Attorney General, knew that my question wasn't really a hypothetical. This exchange occurred after Senate Democrats on the committee tried unsuccessfully to have Gonzales sworn in so that his statements could ultimately, theoretically, give rise to a perjury investigation.

Whether Gonzales told the truth last year is still open to debate — as is the administration's position that the program does not violate the law. But the exchange between the committee Democrat and the attorney general highlights the atmosphere of distrust that wafted through the first Congressional hearing into the eavesdropping program that purports to monitor communications between al Qaeda suspects here and abroad. In the main, the Republicans on the Judiciary Committee were willing to give Gonzales the benefit of the doubt about the legal and factual assertions he was making on behalf of the president. By and large, the Democrats were not.

If Monday's hearing is any indication, the administration has a bit of a "trust" problem about a surveillance program the proponents of which have asked the American people to "trust them" to ensure that there are no excessive violations of privacy rights. Clearly, there is a perceived credibility gap — at least on the part of several Democratic Senators — between what the White House is doing and what it is saying to Congress when it comes to the legal war on terror. And nothing Attorney General Gonzales appeared to do or say during his long hours in the hot seat Monday narrowed it. In fact, it's probably as wide as it has been since the program was disclosed by The New York Times late last year.