South Carolina Sen. Lindsey Graham said Monday that if the Bush administration's defense of warrantless spying must rely on the president's power as commander in chief, then it's a theory that "seems to have no boundaries when it comes to executive decisions in a time of war."
It was a remarkable statement coming from a Republican senator, but what was more remarkable still is that Alberto Gonzales wasn't able to -- or just didn't want to -- lay out some specific "boundaries" in response. The attorney general uttered vague words about the power that Congress maintains during war, then suggested that Congress had used exactly that power to implicitly authorize warrantless spying with its post-9/11 use-of-force resolution -- an argument Graham had already dismissed out of hand.
If Graham was looking for signs that the Bush administration understood and appreciated limits on its own powers, he didn't get them from Gonzales. During the first day of hearings on the president's warrantless spying plan, Gonzales was asked again and again whether the Bush administration was either engaged in or thought it had the power to engage in all sorts of intrusive or otherwise troubling wartime activities. Again and again, Gonzales declined to answer any such questions.
Gonzales wouldn't answer when Sen. Patrick Leahy asked him if he thought the use-of-force resolution authorizes the administration to search Americans' first-class mail. He wouldn't say when Sen. Dianne Feinstein asked him whether the president's commander-in-chief power authorizes him to suspend the National Security Act's prohibition against domestic propaganda. He said he couldn't answer, at least not immediately, when Sen. Russ Feingold asked whether the administration has engaged in "other actions under the use of military force for Afghanistan resolution that, without the inherent power, would not be permitted because of the FISA statute." He wouldn't answer when Sen. Chuck Schumer asked him whether the government has searched -- or placed a listening device in -- the home or office of an American citizen without a warrant since 9/11.
When Schumer asked about warrantless searches of Americans' homes and offices, Gonzales did what he did a number of times Monday: He narrowed the question to the very edge of existence, then refused to answer it anyway.
Schumer: Now, here's the next question I have: Has the government done this? Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?
Gonzales: To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that.
Schumer: I don't know what that -- what does that mean, "under the terrorist surveillance program?" The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different. So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.
Gonzales: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator.
Schumer: I'm not asking you about any operation. I'm not asking you how many times. I'm not asking you where ...
Gonzales: You asked me, "Has that been done?"
Schumer: Yes.
Gonzales: Have we done something?
Schumer: Yes.
Gonzales: That is an operational question, in terms of how we're using capabilities.
Schumer: So you won't answer whether it is allowed and you won't answer whether it's been done. I mean, isn't part of your -- in all due respect, as somebody who genuinely likes you, but isn't this part of your job, to answer a question like this?
Gonzales: Of course it is, Senator.
Schumer: But you're not answering it.
Gonazales: Well, I'm not saying that I will not answer the question.
Schumer: Oh.
Gonzales: I'm just not prepared to give you an answer at this time.
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