A question of when

You know, it seems pretty obvious that Republicans on the Senate Judiciary Committee had good reasons not to have Attorney General Alberto Gonzales sworn in before he gave his testimony on the NSA surveillance program earlier this week.

Because it's very questionable whether Gonzales was telling the truth, particularly regarding when the Bush administration authorized the NSA surveillance. Gonzales was adamant that it came after Congress authorized the use of military force against Al Qaeda:

LEAHY: Let me just ask you a few questions that could easily be answered yes or no.

I'm not asking about operational details, I'm trying to understand when the administration came to the conclusion that the congressional resolution authorizing military force again Al Qaida, where we had hoped that we would actually catch Osama bin Laden, the man who hit us -- but where you came to the conclusion that it authorized warrantless wiretapping of Americans inside the United States.

Did you reach that conclusion before the Senate passed the resolution on September 14th, 2001?

GONZALES: Senator, what I can say is that the program was initiated subsequent to the authorization to use military force.

LEAHY: Well, then, let me...

GONZALES: And our legal analysis was completed prior to the authorization of that program.

LEAHY: So your answer is you did not come to that conclusion before the Senate passed the resolution on September 14th, 2001?

GONZALES: Sir, I certainly had not come to that conclusion. There may be others in the administration who did.

LEAHY: Were you aware of anybody in the administration that came to that conclusion before September 14th, 2001?

GONZALES: Senator, sitting here right now I don't have any knowledge of that.

LEAHY: Were you aware of anybody coming to that conclusion before the president signed the resolution on September 18th, 2001?

GONZALES: No, sir.

The only thing that I can recall is that we had just been attacked and that we had been attacked by an enemy from within our own borders and that...

LEAHY: Mr. Attorney General, I understand. I was here when that attack happened. And I joined with Republicans and Democrats and virtually every member of this Congress to try to give you the tools that you said you needed for us to go after Al Qaida, and especially to go after Osama bin Laden, the man that we all understood masterminded the attacks, the man who's still at large.

LEAHY: Now, back to my question: Did you come to the conclusion that you had to have this warrantless wiretapping of Americans inside the United States to protect us before the president signed the resolution on September 18th, 2001? You were the White House counsel at the time.

GONZALES: What I can say is that we came to a conclusion that the president had the authority to authorize this kind of activity before he actually authorized the activity.

LEAHY: When was that?

GONZALES: It was subsequent to the authorization to use military force.

LEAHY: When?

GONZALES: Sir, it was just a short period of time after the authorization to use military force.

LEAHY: Was it before or after NSA began its surveillance program?

GONZALES: Again, the NSA did not commence the activities under the terrorist surveillance program before the president gave his authorization.

Unsurprisingly, the White House is withholding the documents authorizing the program, because those indeed would tell us when Bush signed them.

The problem with Gonzales' testimony is that it is contradicted by what we already know about the surveillance, as Jason Leopold explains at truthout.org: namely, that Bush authorized it before 9/11. He points to James Risen's State of War:

"The president personally and directly authorized new operations, like the NSA's domestic surveillance program, that almost certainly would never have been approved under normal circumstances and that raised serious legal or political questions," Risen wrote in the book. "Because of the fevered climate created throughout the government by the president and his senior advisers, Bush sent signals of what he wanted done, without explicit presidential orders" and "the most ambitious got the message."

... According to the online magazine Slate, an unnamed official in the telecom industry said NSA's "efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source reports that the NSA approached U.S. carriers and asked for their cooperation in a 'data-mining' operation, which might eventually cull 'millions' of individual calls and e-mails."

Of course, even if Gonzales' chronology were correct, his entire claim is of course dubious, as former CIA General Counsel Jeffrey Smith points out:

"It is not credible that the 2001 authorization to use force provides authority for the president to ignore the requirements of FISA," Smith wrote, adding that if President Bush's executive order authorizing a covert domestic surveillance operation is upheld as legal "it would be a dramatic expansion of presidential authority affecting the rights of our fellow citizens that undermines the checks and balances of our system, which lie at the very heart of the Constitution."

If indeed Bush took these steps before 9/11, then it should be plain it has little, indeed, to do with fighting terrorism, and everything to do with expanding presidential powers.

And the more I watch them twist and deny, the more inclined I am to believe that someday, when the details are exposed, we will be reading about grotesque abuses of the program -- including expanding it to surveillance of political opponents.