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A Look at Gonzales’ Testimony on NSA Spying, the Role of Attorney General and the Power of the Executive

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As Attorney General, Alberto Gonzales testifies on the National Security Agency’s domestic spying program before the Senate Judiciary Committee. We speak with Aziz Huq of NYU Law School about the hearing, the role of Congress and the Executive and the close relationship between Gonzales and the White House. [includes rush transcript]

On Monday, Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee and defended the National Security Agency’s domestic spying program. He repeatedly declined to answer specific questions or to give examples of how the program had protected the country. Gonzales claimed this was classified information and disclosure would put individuals at risk.

  • Aziz Huq, the associate counsel at the Brennan Center for Justice at NYU School of Law. Aziz is co-writing a book titled “Unchecked and Unbalanced” with Fritz Schwarz on national security and the separation of powers, to be published by the New Press.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: To discuss the hearings, we’re joined by Aziz Huq. He’s the associate counsel at the Brennan Center for Justice at the New York University School of Law, co-writing a book entitled Unchecked and Unbalanced with Fritz Schwarz, on national security and the separation of powers. Welcome to Democracy Now!

AZIZ HUQ: Good to be here, Amy.

AMY GOODMAN: Can you just start off responding to this hearing and what you thought was most significant, as we watched and listened to some of these senators question the Attorney General?

AZIZ HUQ: Amy, the most significant thing that we heard in yesterday’s hearing was the Attorney General’s assertion of what he thinks the President can do as a result of the authorization for the use of military force that was passed on September the 14th, 2001. And essentially what the Attorney General was saying and implying was that the President can do whatever he feels is necessary to win a fairly un-cabined version of a war on terror. And the most important thing that we didn’t hear were really any factual details about quite who the N.S.A. is spying on, quite where that information is going, and quite how the N.S.A. is determining its targets and managing and limiting its spying activity.

AMY GOODMAN: As you listened to the senators, one of the things that was interesting is a lot of Republicans joined in with the Democrats, among them, Lindsey Graham, the Republican of South Carolina, and he went further. He said, 'Do you believe it's lawful for Congress to say — to tell the government, you cannot abuse a prisoner of war?’ And Gonzales said, “I’m not prepared to say that.” So, why bother passing any laws after the September 14, 2001 law? He’s saying that it authorized everything.

AZIZ HUQ: I think that Senator Graham really hit the nail on the head there. Senator Graham has been key in sponsoring another very critical law, the McCain anti-torture amendment, and is concerned about whether the McCain anti-torture amendment that was passed at the end of last year will have any legal binding effect on what the President authorizes his subordinates to do.

AMY GOODMAN: Explain that further.

AZIZ HUQ: Last year, Congress signed into law a restriction on cruel, inhuman and degrading treatment by employees and agents of the U.S. government. And in signing that law —

AMY GOODMAN: The McCain bill.

AZIZ HUQ: The McCain bill. In signing that law, the President said that he would interpret it according to his constitutional prerogatives. Now, what Senator Graham was referring to today was the concern that Senator Graham has, that Senator McCain has, and that many on the other side of the House have, is that President Bush will be interpreting not just the authorization for the use of military force to authorize whatever he feels is necessary, but also as license to restrict the limits that Congress has chosen to place on presidential activities in the counterterrorism arena, like the McCain amendment.

AMY GOODMAN: Of course, he signed a side letter in that case, which also freed him further, the President. Yes, he made a big deal of signing the agreement and standing with Senator McCain, but then he signed a side letter that said, actually, he can do what he wants to do.

AZIZ HUQ: Right. The side letter you’re referring to is the presidential signing statement, and signing statements are typically not seen as a source of interpretation of the law, except, that is, under the Justice Department’s interpretation that’s been put forward or was put forward by Judge Alito in the mid-’80s.

AMY GOODMAN: How independent is the Attorney General supposed to be? I mean, to some watching yesterday, it looked like it was President Bush’s personal attorney or the attorney for the White House, which, in fact, Alberto Gonzales was before he became Attorney General.

AZIZ HUQ: That’s right. The Attorney General at one point in the hearings referred to his client as the President. But really, he is the Attorney General of the United States and represents the interests of the United States as a whole. And there’s a longstanding tradition within the Justice Department of institutional continuity, of a loyalty to the institutions of the United States, per se, rather than the political appointees who happen to be in them. And we have seen some indications that the Justice Department has veered somewhat from that traditional. We’ve seen it in the voting rights area. We have seen it in the positions taken in the counterterrorism area, in documents like the torture memo of 2002. So there is some concern, I would say, about the way in which the Justice Department is comporting itself professionally.

AMY GOODMAN: I mean, when Janet Reno was the Attorney General under President Clinton, it seems like he tried to get rid of her a number of times, not pleased with how she was dealing with certain issues, that there was a tension between the two.

AZIZ HUQ: Whereas today we have an Attorney General who is extremely close to his president, and I use the word “his” president advisedly.

AMY GOODMAN: Is he also protecting himself?

AZIZ HUQ: I think we don’t know that until we see, as several of the senators said in yesterday’s hearings, a lot more of the documents and a lot more of the basic facts.

AMY GOODMAN: Do you think that’s going to happen?

AZIZ HUQ: I think we’ll see a very hotly contested battle about the legal opinions, about the factual opinions in the forthcoming days. I think what we have seen in the press is the difficulty of keeping details of programs of this kind under wraps, particularly when within both the N.S.A. and the C.I.A., you have a great deal of evident discontent about the way in which these agencies have been directed to act. And so, if we see details of these programs come out, I think it’s just as likely that they come out in the press as through congressional inquiries.

AMY GOODMAN: Is this Senate Judiciary Committee going to get any information on what, in fact, the Bush administration is doing monitoring, surveilling, wiretapping Americans without court order?

AZIZ HUQ: Particularly if the Senate Judiciary Committee chooses to call former Justice Department officials, like Deputy Attorney General Jim Comey, like the former head of the Office of Legal Counsel, Jack Goldsmith, that committee has a good chance of getting a meaningful cut of information about what the N.S.A. is doing.

AMY GOODMAN: We had a guest on our show a month or two ago named Russell Tice, who had worked with the National Security Agency. He has told Congress he wants to testify.

AZIZ HUQ: I think having people like Mr. Tice, people like the other former N.S.A., current N.S.A. employees, who are covered by the federal whistleblower statute, who are protected from retribution from political superiors, come forward and testify either in closed hearings or in open hearings — and with closed hearings one can always issue a redacted manuscript or transcript after they hear it — would be a way for the Judiciary Committee to have some real oversight, the sort of oversight that Congress is expected to exercise over the N.S.A.

AMY GOODMAN: Do you think that these hearings are productive or bluster? They are good theater, but are the senators, the Democrats as well as Republicans, getting anywhere? And what would they have to do to actually get information?

AZIZ HUQ: Hearings are a way of directing public attention to an issue. And to the extent that the hearing clarifies the issues at stake in the N.S.A. program, these hearings are valuable. Now, whether they’re the best way to get at the detailed facts about what the N.S.A. has precisely been doing, and whether it’s really this very targeted program that Attorney General Gonzales describes, or whether it’s the sort of dragnet data mining operation that doesn’t rest on individual suspicion, that simply looks for people to spy on, that kind of question, I think, we’ll only see through congressional investigations along the model of the Church Committee, we’ll see through further news reporting —

AMY GOODMAN: Explain the Church Committee.

AZIZ HUQ: The Church Committee was a body set up by the Senate in 1975 to investigate overreaching by the C.I.A., the F.B.I., the N.S.A., and other intelligence agencies during the Cold War. They conducted a year-long investigation. They had subpoena power. What they produced at the end of that year was a multi-volume report that documented in exacting detail a gamut of overreaching abuses and political manipulation of intelligence agencies across both Democratic and Republican presidencies.

AMY GOODMAN: The ultimate clash here is the power of these two parts of the government, right? The executive and Congress. What do you think is going to come of this? It’s happened in other times, too, and we’re going to see this, but this overarching supremacy of the executive branch of government over legislative.

AZIZ HUQ: American history teaches us that there is a quick swing between presidential supremacy and congressional supremacy. If you look back to the Civil War, you have one of the most powerful presidents in history, Abraham Lincoln, followed by one of the first presidents to face impeachment, Andrew Johnson. If you look back Watergate, the same is true. If you look back to Clinton, you see the same shift in power. Today’s assertions of presidential supremacy aren’t necessarily a lasting feature of the political landscape, and Congress certainly has the resources to cut back on it.

AMY GOODMAN: Well, I want to thank you very much for being with us. Aziz Huq is associate counsel at the Brennan Center for Justice at NYU School of Law, co-writing a book called Unchecked and Unbalanced on national security and the separation of powers. Thanks so much for joining us.

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