Another Puppet: Attorney General Gonzales

Yesterday, when AG Alberto Gonzales testified for seven hours in front of the Senate Judiciary Committee which is investigating the wiretaps ordered by President Bush, it was John Choon Yoo’s arguments that were heard, not those of Gonzales. Woo is the ultra-conservative University of California law Professor who wrote a memo on September 25, 2001, which said “no statute passed by Congress can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response." Gonzales doesn’t seem to be smart enough or wily enough to formulate twisted readings of either Congressional actions or the US Constitution. But John Yoo can contort and torque the law better than the best legal mind not on the Supreme Court. When Gonzales was not channeling Yoo, he was saying either that he didn’t know the answer to the question asked or that he couldn’t divulge the answer because it would imperil the security of the United States. Which of course was baloney, but sounded properly cautious and in-the-know. Gonzales/Yoo said there were two laws. One allows the wiretap surveillance ordered by the Prez, the other forbids it. Gonzales/Yoo argued that a Congressional action of 2001 overrode a law of 1978, which forbids domestic surveillance without court permission. The resolution of 2001 says the president can use “necessary and appropriate force” to prevent acts of international terrorism against the US. Those who claim that Bush has done nothing illegal contend that those few words about “force” give the President the right to do anything he likes. Those who argue the other side say that the Congressional action of 2001 was far too general and unspecific to override the 1978 law. They say that for one law to take precedence over another law, the second one has to be specific and must spell out exactly what is being changed. But the capper on the Gonzales/Yoo argument is that even though there may be two diametrically opposed laws, if it’s “fairly possible” that the Bush administration might possibly be right in its interpretation, then the executive branch opinion takes preference over everyone else’s opinion because, get this: There is a doctrine called “constitutional avoidance". The constitutional avoidance doctrine states that any reading of statutes that creates a constitutional conflict must be avoided if another reasonable interpretation is possible. Of course the stinker here is that the Bush administration could and would claim that ANYTHING is fairly possible and then they’d invoke constitutional avoidance. This kind of legal nonsense is pure Yoo and it's not going to happen. A group of 14 constitutional scholars and former government officials sent a letter to Congress last week saying that "FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply." Gonzales's main argument against getting court approval for wiretaps seems to be that it is just too much trouble. John Yoo probably wasn’t the progenitor of that defense…it’s too direct, honest, and not convoluted enough. We’ll get to hear Gonzales spout his Yoo arguments more fully in the coming weeks. The judiciary panel will hold at least two more open hearings. In addition, the Senate intelligence committee is meeting behind closed doors this week to hear from Gonzales and a former NSA director, Air Force Gen. Michael V. Hayden.