The Impeachment Clock

U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority

The Washington Post published the transcript (from CQ Transcripts Wire) of Day 1 of the Senate Hearings (Monday, February 6, 2006) in three parts:

Part 1, Part 2, and Part 3
My friend, the City Troll, asked me to comment on how statements from Monday’s proceedings support my contention that George W. Bush authorized a program of illegal intercepts in 2001 and that this constitutes an impeachable violation of American law. Even though the Constitution gives the House rather than the Senate the responsibility of Impeaching the President for his criminal activities, and despite the fact that the Troll thinks that this is merely a partisan exercise, I will point out some of yesterday's highlights.

To avoid even the appearance of partisanship, I'm including only comments made by Republicans (except for one dialog between Attorney General Gonzales and Senator Feingold used to clarify an earlier comment of the AG) in the sequence in which they were made (except for an earlier explanation by Attorney General Gonzales used to clarify a later comment of the AG).

All emphasis is mine, as are any
intervening comments.

SPECTER: Well, speaking for myself, I would urge the president to take this matter to the FISA Court. They're experts. They'll maintain the secrecy. And let's see what they have to say.

GONZALES: I believe that it's Section 109, which talks about persons not engaged in electronic surveillance under cover of law except as authorized by statute. And I may not have it exactly right.
We believe that that is the provision in the statute which allows us to rely upon the authorization to use military force.
The legislative history appears to reflect an intention that the phrase “authorized by statute” was a reference to chapter 119 of Title 18 of the U.S. Code (Title III) and to FISA itself, rather than having a broader meaning.

GONZALES: I think the only case that comes to mind that's really pertinent would be the 2002 case, In Re. Sealed Case by the FISA Court of Review. While the court did not decide this issue, the court acknowledged that every case that's considered this has found that the president has the authority.

FEINGOLD: Isn't it true that the only federal courts to decide the president's authority to authorize warrantless national security wiretaps were considering wiretaps that were carried out before the enactment of FISA?
GONZALES: In which there were actual decisions? Actually, there was a 4th Circuit decision, the Truong decision, which was decided after FISA.
To be fair, I don't think they really got into an analysis...
FEINGOLD: And that case was about a Vietnam era wiretap, before FISA was enacted, right?
GONZALES: The collection occurred before FISA was enacted. The decision was made after FISA. And consequently my recollection is that case doesn't really get into a discussion about how the passage of FISA impacts or affects the...
FEINGOLD: If it was based on facts prior to FISA, then the only law that controls is the law prior to FISA, right?
GONZALES: That's right.
And then of course In Re. Sealed Case...
FEINGOLD: You covered that with Senator Feinstein. That was dicta...
Dicta = An opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding.
GONZALES: Yes.
FEINGOLD: Correct?
GONZALES: Yes.
FEINGOLD: Thank you.

So, Gonzales agrees that the only case arising under FISA did not rule on the issue he is arguing and the court's comments on inherent presidentitial authority were dicta, i.e., they had no legal value!

GRAHAM: In all honesty, Mr. Attorney General, this statutory force resolution argument that you're making is very dangerous in terms of its application for the future. Because, if you overly interpret the force resolution -- and I'll be the first to say, when I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.

GRAHAM: The FISA statute said, basically, "This is the exclusive means to conduct foreign surveillance where American citizens are involved." And the Congress, seems to me, gave you a one-lane highway, not a two- lane highway. They took the inherent authority argument, they thought about it, they debated it, and they passed a statute -- if you look at the legislative language -- saying, "This shall be the exclusive means."

GRAHAM: All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.

CORNYN: And clearly the Supreme Court, in the Hamdi case, said what we all know to be the fact, and that is no president is above the law, no person in this country, regardless of how exalted their position may be or how relatively modest their position may be -- we're all governed by the Constitution and laws of the United States.

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
Thanks for clearing that up. So, let's stop comparing this to WWII!

KYL: Is it possible to acknowledge the FISA authority exists while also making the point that it's not the optimal or maybe even workable method of collection of the kind that's done under the surveillance program at issue here?
GONZALES: No question about it. It was one of the reasons for the terrorist surveillance program, is that while FISA ultimately may be used, it would be used in a way that's ineffective, because of the procedures that are in FISA.
This gets us back to the "we violated the law because it was inconvenient" excuse.

DEWINE: We've had a lot of discussion today, and you've referenced a lot to this group of eight, reporting to this group of eight.
I just want to make a point. It's a small point, I guess, but the statutory authorization for this group of eight is 50 USC 413(b). When you look at that section, the only thing this references as far as what this Group of Eight does is receive reports in regard to covert action. So that's really what all it is. It does not cover a situation like we're talking about here at all.
So, even Republicans are tired of the "blame it on the mysterious Gang of 8" excuse.

GRAHAM: Is it your opinion and the administration's position, without the force resolution that FISA is unconstitutional in the sense it intrudes on the power of the president to conduct surveillance in the time of war?
GONZALES: I think that question has been raised a couple of times today. I have indicated that that, then, puts us into the third part of the Jackson analysis.

The third part was where the president is acting in contravention -- not in contravention, but in a way that's incompatible with congressional action.

Yes, the president is CLEARLY acting in contravention, in violation, of not only Congressional action but of the law of the land.

Those were some of my favorite quotes from Day 1 of the Senate Hearings.