By now you've all read, heard, or seen Gonzales' two great moments of "huh?" inducing silliness at yesterday's senate hearings.
His first moments was this exchange with Sen. Biden:
BIDEN: I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls. I mean, I'm a little confused. How did it damage this?
GONZALES: I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance. But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.
The Senators and the spectators laughed at Gonzales for this dumb statement, and rightly so.
His second moment was this appeal to precedent:
GONZALES: President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance on a far broader scale.
I think we are all agreed, that George Washington never listened in on people's phone calls. Gonzales needs to be mocked for this slip, but, when we're done laughing and pointing, we need to address the point he was trying to make. That point is part of the official narrative that the administration is trying to sell and must be repudiated if we are to stop the administration's decent into lawlessness and the subversion of our rights.
Gonzales doesn't perform very well in the hot seat. He's not very quick to counter unexpected turns in the direction of the argument and he fumbles. From his written statement and the rest of his testimony, it's clear that he meant to say "warrentless" surveillance, not "electronic" surveillance. It was a slip of the tongue, that's all. He meant to say:
President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized warrentless surveillance on a far broader scale.
There are really two propaganda points in that sentence: other presidents did it too, so it's okay for Bush to do it, and other presidents did lots more, so Bush's crime is really insignificant. Let's look at those in reverse order.
Whether what the other presidents did was "on a far broader scale" or not is something we just don't know at the present. The administration has more than one program of illegal surveillance in progress. The Pentagon is watching protestors and the NSA is wiretapping electronic communication (not just phone calls, but e-mails and financial transactions, too). The administration won't tell us the full scale of these operations. The specific program in question, the NSA wiretapping, has several layers. A vast amount of information is sucked in at the top and filtered by computers before a much smaller number are tagged for attention by human agents.
In Washington's time there were only a few million people on the entire North American continent. Washington had some people's letters opened and read. The NSA computers are vacuuming in hundreds of millions of communications at the top level. Before we believe any statement from this administration comparing the size of their operation with the actions of past presidents, we need to know what part of the current operation they are comparing, over what time period, and which actions of the past presidents they are comparing it to.
When Gonzales, or anyone else in the administration, says "other presidents did it, too" they are, of course, trying to fog the issue with a whole slew of childish falacies. I'm tempted to leave it at "if George Washington jumped off a cliff, would George Bush jump off one, too?"* We shouldn't even need to deal with this one, but here goes: it's illegal, dammit. Just because someone else might have done something similar doesn't make it less illegal. Okay, now that that's out of the way, let's move on to the more subtle dishonesties of the administration's "they did it, too" argument.
Many of the examples of other administrations (especially those of Carter and Clinton) conducting some form of warrentless surveillance involve actions that were not illegal at the time, but that have since become illegal. This is an important distinction. Carter and Clinton did not commit crimes; Bush did. Washington did many things that are now illegal but were not when he did them, including grow marijuana and buy human beings to use as slaves. Washington did not commit a crime in either of those cases, but if Bush tried them, it would be a crime.
Finally, while it is well documented that Lincoln, Wilson, and FDR ignored due process and violated rights to pursue their wars, these actions are considered shameful moments in US history. The Bush administration wants to normalize the worst moments of previous administrations and claim them as the only standard that they should be measured against. America deserves better and Americans should demand better.
On a bizarre side note, via Stephen Bates and a bunch of other stops, is this passage from the official defense of the NSA project (Legal Authorities Supporting the Activities of the National Security Agency Described by the President):
More specifically, warrantless electronic surveillance of wartime communications has been conducted in the United States since electronic communications have existed, i.e., since at least the Civil War, when "[t]elegraph wiretapping was common, and an important intelligence source for both sides." G.J.A. O’Toole, The Encyclopedia of American Intelligence and Espionage 498 (1988). Confederate General J.E.B. Stuart even “had his own personal wiretapper travel along with him in the field” to intercept military telegraphic communications. Samuel Dash, et al., The Eavesdroppers 23 (1971); see also O’Toole, supra, at 121, 385-88, 496-98 (discussing Civil War surveillance methods such as wiretaps, reconnaissance balloons, semaphore interception, and cryptanalysis).
Let that one roll around in your brain for a minute and see if it doesn't also hit the "huh?" reflex. The Bush administration is calling the actions of someone engaged in armed rebellion against the legal government of the United States (the very textbook definition of treason) a valid precedent for their actions. Maybe that makes sense to the kind of Texans that Bush surrounds himself with, but most Southerners I know would consider that a bad example to call up in his defense.
* If the answer is "yes," how can we arrange for George Washington to jump off a cliff? That's just a hypothetical question. I would never really try to get a president (living or dead) to jump off a cliff. That would be wrong.