Sen. Schumer: And that is: Under the legal theory, can the government, without going to a judge -- this is legal theory; I'm not asking you whether they do this -- monitor private calls of its political enemies, people not associated with terrorism but people who they don't like politically?
Attorney General Gonzales: We're not going to do that. That's not going to happen.
Sen. Schumer: OK. All right. Next, different issue...
-- From Senate Hearings on warrantless wiretapping, Feb 6, 2006
-- Author Unknown
Note well what the Attorney General was being asked -- his legal opinion, not his intentions. He did not answer that it would be illegal. Instead, it was that the executive, in its infinite benevolence, was not planning to do it. That is, the government would refrain from doing something not because it was illegal, but because they chose not to.
Wasn't it Mark Twain who said he was superior to George Washington? Washington said, “I cannot' tell a lie.” Twain observed, “I can, but I won't.” (Coincidentally, at one stage Gonzales too invoked George Washington, pointing out the first president had opened people's mail in his time).
Wouldn't you have expected every senator to jump in on hearing Gonzales’ words and for pandemonium to have broken out in the room? What other questions could remain after this open revelation of the administration's mens rea? Instead, Schumer moved on. The other senators didn't stir. And this exchange didn't even merit headlines on the evening news or in the morning papers.
The Attorney General treated the Senators like a bunch of pesky kindergarteners to be tolerated on a one-day outing. But that description does an injustice to children. Try shushing up a kid with an, “I can't tell you that” to every second question.
Perhaps the better analogy would be one of a cocky salesman who has already met his sales target, wearing a cap with the words “Screw You” in bold letters, cheerful and relaxed as he entertained a couple shopping hesitantly for a car, where the wife is on his side. Before the toothless tiger that is the Senate, Gonzales smiled often, sometimes in amusement, but more often, it seemed, in pity.
The question at hand, obvious to anyone, was quite simple. Can the government circumvent an explicit law that says the exclusive process for authorizing wiretapping is through the FISA court? Gonzales contended that they did not use the FISA court, but they had broken no law. Try that next time you are stopped by a traffic cop – “I was going the wrong way on this one-way street, officer, but no way did I broke the law.”
About four years ago, there was a similar appearance by then Attorney General John Ashcroft before the Senate Committee (see “Day of Infamy”). It is commentary enough on our condition that senators were now looking to Ashcroft as a defender of civil liberties!
In the department of chutzpah, Ashcroft was not even in Gonzales’ league.
I was reminded of the Spanish saying, “En el pais de los ciegos, el tuerto es el rey.”* In this odd game, it was the piñata that emerged unscathed while the players got bruised while hitting out half-heartedly -- sans passion and sans righteous anger.
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