Ever since he became attorney general, Alberto Gonzales'sappearances before the Senate Judiciary Committee have followed agrimly familiar script: Gonzales blandly announces that thepresident can do whatever he likes in the war on terrorism.Republicans fulsomely praise him for defending the homeland.Democrats sputter that he is asserting the right to break the lawand ask whether he will acknowledge any limits on executive power.Gonzales
promises to get back to them after talking to his "principal"--thatis, Bush. And he concedes nothing.
Last week, all that seemed to change. First, the administrationappeared to reverse itself dramatically on its warrantless wiretapprogram, announcing that it would now submit to judicial review bythe Foreign Intelligence Surveillance (fisa) court. A day later,when Gonzales made an appearance before the Senate-- his firstsince the Democrats took control--he found himself assailed bymembers of both parties. Republican Senator Arlen Specter suggestedthat the "heavy criticism" the administration had invited byrefusing to subject its terrorist surveillance program to judicialreview may have contributed to the Republicans' loss of a "closeelection" and harmed the nation's reputation. Democrats showed anewfound aggression in refusing to accept Gonzales's obfuscationsand promising to follow up with congressional investigations.
But actual circumstances might not have changed very much. First,the administration's wiretap reversal may be less than meets theeye. Senators from both parties expressed relief that theadministration had finally abandoned its unsupervised surveillanceprogram and agreed to apply for warrants from the secret fisacourt. But few were satisfied with Gonzales's refusal to providebasic details about the new program, such as whether the governmentwould be required to seek warrants for specific cases or could bebroadly warranted to wiretap large categories of individuals.(President Bush himself suggested the latter in an interview,claiming that "nothing has changed in the program, except the courthas said we've analyzed it [and] it is a legitimate way to protectthe country.") When pressed on this point, Gonzales again resortedto stonewalling. Though Judiciary Chairman Patrick Leahy noted thatthe head of the secret surveillance court had agreed to release thedecision endorsing the new program as long as the administrationagreed, Gonzales said he would need to consult his "principal"before responding.
But Gonzales did not merely refuse to give an inch about therevisions to the surveillance program. He also refused to saywhether the administration had the authority to open the mail ofAmerican citizens without a warrant--a clearly illegal act. And herefused to explain a recent speech at the American EnterpriseInstitute, in which he declared that "a judge will never be in thebest position to know what's in the national security interest ofthe country"-- an assertion of unilateral prerogative that almostdares judges to review cases arising from the war on terrorism.
The time for congressional patience with Gonzales's evasions haslong past. The highest priority for the new congressional oversightthat we can expect from Democrats should be to hold the Bushadministration accountable for its lawless claims of executiveunilateralism. This means, as Leahy recognized, that the Democratsshould hold hearings on whether the Bush administration broke thelaw in the past.
But investigations into past abuses are not enough. The newDemocratic Congress will also have to pass laws that restrict theexecutive branch's unilateralism in the future. To begin with, itshould pass regulations making clear that the fisa court can onlyissue warrants for surveillance when an individual (or anidentified group of individuals) is suspected of being a foreignspy or a terrorist, as the law requires, rather than authorizingthe surveillance of broad categories of unidentified individuals.The Democrats will also have to pass new laws regarding militarytrials of detainees at GuantAnamo, since those adopted by theadministration last week are painfully inadequate. Theadministration and its allies will, no doubt, argue publicly thatsuch laws will tie its hands in the war on terrorism and imply thatanyone voting for them is abetting America's enemies. But holdingthe unilateralists in the administration accountable will requirecommitment and a willingness to defy the polls.
It's all very well that Democrats and Republicans have lost patiencewith Gonzales's sorry evasions. But now it's time for them to domore.