I Spy, You Spy - Two

Attorney General Gonzales tells us the president’s authority to conduct surveillance without a warrant stands on a second leg, thereby avoiding the embarrassing “Flamingo!” soubriquet. The second leg, which suffers from the same degenerative disease as the first one, is that this intrusion is allowed by the Congressional authorization to use force against Iraq passed after 9/11, the Mother of All Excuses. Okay.

I’ll bet no member of Congress grabbed their pocket Webster’s in the heat of debating this authorization to look up the definition of ‘force’, just to see if it includes tapping phone lines or opening e-mail. Those activities just don’t come up when people are discussing the use of bunker-busters, cluster bombs, smart bombs, Tomahawk missiles, artillery shells and the always-popular hand grenades. Furthermore, when this legislation was being debated the administration asked that the words “including in the U.S.” be inserted in the authorization, but those words were rejected by Congressional leaders because those silly guys and gals thought this was about using military force outside the U.S., which, of course, is exactly what it was about! Normally, that little tidbit alone would allow someone to declare, "Game over!" But, when you’re prone to the trendy ready-fire-aim approach to government, then you often have to revise the history surrounding the aiming phase of the game. The duly elected often attempt to drive while looking through their rearview mirror.

It is disconcerting that Attorney General Gonzales is the primary author of the legal analysis that purportedly supports this authorization – an analysis he did while serving as White House counsel. In that former position, he was acting as an advocate for his client, the president. It was his professional responsibility then to zealously advocate the position of his client and to cast his client’s arguments in a light most favorable to his client. But, as attorney general, in my naiveté and admittedly idealistic haze, I want to think that the client to whom he now owes a duty of professional responsibility is more than just the president; rather, his client is something closer to the people of the United States of America, or at least the entire federal government. Unless we accept the idea that the Attorney General of the United States is just another White House gunslinger, albeit one with an immigrant driver and a really big corner office, then he’s being called upon to advance an analysis that he made while serving in a very different position, and that feels like something akin to a conflict of interest to me. He's before Congress defending himself as much as he's representing the president. Yes, I know; I'm in a haze.

Now we come to the gnarly little problem known as the Foreign Intelligence Surveillance Act, or FISA, as the kids like to call it. FISA, which is really close to VISA, is like a credit card for purchasing federal surveillance warrants. Those in the know never leave their White Home without it. You can use this handy little card almost anywhere if you just show a picture ID and can read a short story. It’s like the average temperature of a living body – 98.6% of time that you flash your FISA card you’re going to get a warrant to conduct some snappy surveillance somewhere, sometime, against somebody; or, as the Friends of FISA like to say, anywhere, anytime, against anyone. But, what’s really amazing about this FISA account is that you can buy what you want and then come back and pay for it up to 72 hours after the fact! Is that cool, or what! In effect, you can shoplift people’s communications with this account and it’s not even a teeny-tiny problem if you can find your way into the FISA office within the next three days. And the process that authorizes these shopping sprees is totally secret and the people involved are complete unknowns. This just keeps getting better and better – who writes this stuff? Heaven knows you can’t make it up.

Now, why can’t the administration play ball by these rules. This game is fixed, man! The dice are loaded; the cards are dog-eared; the wheel is greased; the dealer is wearing reflective sun glasses when she looks down at her hand! Said another way, why can’t the administration comply with this law, a law they admittedly use on many, many other occasions; a 28-year old law that they now, rather suddenly, suggest is surely unconstitutional if anyone thinks that it’s application in any way impedes the presidential spy program that is now under scrutiny. If this law is unconstitutional, then what does that portend for all the evidence that has been and continues to be gathered under it? And if this law is not unconstitutional, what does that portend for all the evidence that has been and continues to be gathered outside of it? I think I hear the pitter-patter of little feet as any number of bad guys walk free out of various courthouses in American with smiles on their faces. Like I said, who writes this stuff?

Oh, yeah, White House counsel.