Thursday 09 February 2006

In 1996, Governor George W Bush received a summons to serve on a jury, which would have required his admission that 20 years earlier he had been arrested for drunk driving. Already planning his presidential campaign, he did not want this information made public. His lawyer made the novel argument to the judge that Bush should not have to serve because "he would not, as governor, be able to pardon the defendant in the future". (The defendant was a stripper accused of drunk driving.) The judge agreed, and it was not until the closing days of the 2000 campaign that Bush's record surfaced. On Monday, the same lawyer, Alberto Gonzales - now attorney general - appeared before the senate judiciary committee to defend "the client", as he called the president.

Gonzales was the sole witness called to explain Bush's warrantless domestic spying, in obvious violation of the foreign intelligence surveillance act (Fisa) and circumvention of the special court created to administer it. The scene at the Senate was acted as though scripted partly by Kafka, partly by Mel Brooks, and partly by John le Carré. After not being sworn in, the absence of oath-taking having been insisted upon by the Republicans, Gonzales offered legal reasoning even more imaginative than that he used to get Bush off jury duty: a melange of mendacity, absurdity and mystery.

The attorney general argued that Fisa did and did not apply; that the administration was operating within it, while flouting it; and that it didn't matter. The president's "inherent" power, after all, allowed him to do whatever he wanted. It was all, Gonzales said, "totally consistent". His explanation, observed Senator Arlen Specter, the Republican chairman of the judiciary committee, "defies logic and plain English".

Congress, Gonzales elaborated, had no proper constitutional role, but in any case had already approved the president's secret program by voting for the authorization of the use of military force in Afghanistan - even if members didn't know it; or even, when informed years later that they had approved the secret program, objected that they hadn't known that that was what they were doing.

The legislation that was ignored, Gonzales declared, shouldn't be amended to bring this domestic spying under the law because the secret program was already legal, or might be legal; and anyway it doesn't matter if Congress says it's legal. The all-powerful president should be trusted, but when Bush states wrongly that he goes to court for warrants, it's all right that he doesn't know what he is talking about. "As you know," said Gonzales, "the president is not a lawyer."

Who was or wasn't being spied on couldn't and wouldn't be explained. When Senator Dianne Feinstein, Democrat of California, asked whether the program could be used to "influence United States political processes, public opinion, policies or media", Gonzales replied: "Those are very, very difficult questions, and for me to answer those questions sort of off the cuff, I think would not be responsible." When Senator Joseph Biden, Democrat of Delaware, asked for assurances that only al-Qaida or suspected terrorists were subjected to surveillance, Gonzales answered: "Sir, I can't give you absolute assurance."

Nor would he say what the program really was. "I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized," Gonzales said. "I'm not going to respond to that. I'm not going to answer."

Gonzales's ultimate argument was an appeal to history. George Washington, he pointed out in a display of erudition, "intercepted British mail", footnoting a 1997 CIA report on the subject. In the civil war, the telegraph was wiretapped. And during both the first and second world wars, communications were intercepted. Gonzales's a historicism about technology aside (George Washington had no cell phones to tap, no computers to hack), Washington, Lincoln and Roosevelt could not have broken a law that did not exist.

Through his convoluted testimony, the attorney general represented "the client" as a useful factotum again. But in his tour of history, he neglected the disclosure by the Associated Press on February 3 of about 200 pages of documents from the White House of President Gerald Ford. These papers highlighted the objections made by Ford's secretary of defense, Donald Rumsfeld, and his chief of staff, Dick Cheney, to getting court warrants for domestic surveillance. It was partly to thwart such unaccountable executive power that Congress enacted Fisa in 1978.

Once again Cheney, the power behind the throne, has found a way to relieve the frustrations of the past. But he is fulfilling more than the curdled dreams of the Nixon and Ford era. The Bush presidency is straining to realize a pre-Washington ideal - unconstitutional monarchy.