Ever since he became attorney general, Alberto Gonzales's appearances before the Senate Judiciary Committee have followed a grimly familiar script: Gonzales blandly announces that the president can do whatever he likes in the war on terrorism. Republicans fulsomely praise him for defending the homeland. Democrats sputter that he is asserting the right to break the law and ask whether he will acknowledge any limits on executive power. Gonzales promises to get back to them after talking to his "principal" — that is, Bush. And he concedes nothing.
Last week, all that seemed to change. First, the administration appeared to reverse itself dramatically on its warrantless wiretap program, announcing that it would now submit to judicial review by the Foreign Intelligence Surveillance (FISA) court. A day later, when Gonzales made an appearance before the Senate — his first since the Democrats took control — he found himself assailed by members of both parties. Republican Senator Arlen Specter suggested that the "heavy criticism" the administration had invited by refusing to subject its terrorist surveillance program to judicial review may have contributed to the Republicans' loss of a "close election" and harmed the nation's reputation. Democrats showed a newfound aggression in refusing to accept Gonzales's obfuscations and promising to follow up with congressional investigations.
But actual circumstances might not have changed very much. First, the administration's wiretap reversal may be less than meets the eye. Senators from both parties expressed relief that the administration had finally abandoned its unsupervised surveillance program and agreed to apply for warrants from the secret FISA court. But few were satisfied with Gonzales' refusal to provide basic details about the new program, such as whether the government would be required to seek warrants for specific cases or could be broadly warranted to wiretap large categories of individuals. (President Bush himself suggested the latter in an interview, claiming that "nothing has changed in the program, except the court has said we've analyzed it [and] it is a legitimate way to protect the country.") When pressed on this point, Gonzales again resorted to stonewalling. Though Judiciary Chairman Patrick Leahy noted that the head of the secret surveillance court had agreed to release the decision endorsing the new program as long as the administration agreed, Gonzales said he would need to consult his "principal" before responding.
But Gonzales did not merely refuse to give an inch about the revisions to the surveillance program. He also refused to say whether the administration had the authority to open the mail of American citizens without a warrant — a clearly illegal act. And he refused to explain a recent speech at the American Enterprise Institute, in which he declared that "a judge will never be in the best position to know what's in the national security interest of the country" — an assertion of unilateral prerogative that almost dares judges to review cases arising from the war on terrorism.
The time for congressional patience with Gonzales' evasions has long past. The highest priority for the new congressional oversight that we can expect from Democrats should be to hold the Bush administration accountable for its lawless claims of executive unilateralism. This means, as Leahy recognized, that the Democrats should hold hearings on whether the Bush administration broke the law in the past.
But investigations into past abuses are not enough. The new Democratic Congress will also have to pass laws that restrict the executive branch's unilateralism in the future. To begin with, it should pass regulations making clear that the FISA court can only issue warrants for surveillance when an individual (or an identified group of individuals) is suspected of being a foreign spy or a terrorist, as the law requires, rather than authorizing the surveillance of broad categories of unidentified individuals. The Democrats will also have to pass new laws regarding military trials of detainees at Guantánamo, since those adopted by the administration last week are painfully inadequate. The administration and its allies will, no doubt, argue publicly that such laws will tie its hands in the war on terrorism and imply that anyone voting for them is abetting America's enemies. But holding the unilateralists in the administration accountable will require commitment and a willingness to defy the polls.
It's all very well that Democrats and Republicans have lost patience with Gonzales' sorry evasions. But now it's time for them to do more.
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