Gonzales' testimony

Some of you have already noticed and commented on my letter in Thursday's Boston Globe. For those of you who missed it, here's the text:

WHAT SCARED me most as I watched Alberto Gonzales's testimony Monday to the Senate Judiciary Committee was his refusal to recognize any limits on the president's power. Senator Dianne Feinstein proposed several actions that the president might take -- like suspending the Posse Comitatus Act that keeps the military separate from the police -- and could not get Gonzales to admit that any of them would be illegal. He conceded only that Feinstein's examples raised ''very, very difficult questions." So I am not comforted by the attorney general's assurance that the administration's warrantless wiretapping program does not break the law. Given the law as he understands it, I shudder to imagine a program that he would consider illegal.

Other than some fiddling with pronouns, that's exactly the letter I sent in.

I thought I'd say a few words about the framing here, because this letter is a good example of how I think liberals should address this issue. The key thing is to draw attention to the pattern and the trend -- expansion of power with no apparent limits. Bush supporters, on the other hand, will try to make the issue as narrow and specific as possible: The NSA might be listening to the international calls of a very small fraction of the population; since most people hardly ever make international calls, they shouldn't feel threatened at all.

Feinstein's examples raise the larger context. Where is this going? What are they going to do next? Gonzales' answer amounted to "We won't tell you."

In debates and discussions, we need to push Bush supporters to flesh out the consequences of the legal theory Gonzales and the rest of the administration have put forward. Under their interpretation of the president's "inherent power" as Commander in Chief, what can't he do? Do we have any protection at all against a president who decides to promote himself to dictator? The Bush people know they don't dare answer -- first because the true is answer is no; and second because even a denial works against them. Imagine a headline like: Bush denies plan for dictatorship.

Gonzales tried to dismiss any future scenarios as "hypothetical," as if that made them unworthy of a response. We can expect to hear this evasion whenever we bring up the larger context, and we can't accept it. Law is all about hypotheticals. There's no way to understand a legal theory without discussing hypotheticals.

Gonzales' second response was to sound reassuring without offering any substance to support that reassurance. He said that the administration has systems in place to keep this program from violating the liberty and privacy of ordinary American citizens, but he could not tell us what those systems were. This is a version of the "trust me" argument. There is only one kind of reassurance that counts: Someone who does not work for the President needs to have oversight. That means judges issuing warrants and congressional committees knowing the details of how the program works. This is not a radical idea: It's the checks-and-balances approach that the Founders wrote into the Constitution. The radical idea is that we can do without checks and balances, and simply trust our leaders not to violate our freedom.

A final note: In this discussion, it's important to talk about "the President" and "the administration" and not George W. Bush. In particular, stay away from any images that diminish Bush -- no lightweight frat boy talk. Nobody is afraid of a lightweight, and they ought to be afraid of this administration.

Doug Muder
11 February 2006
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