Not Telling the Truth
Posted by Morton H. Halperin
Leon Sigal begins his essential book on the government and the press (Reporters and Officials: The Organization and Politics of Newsmaking) by quoting from a high official of the Foreign Office (and I paraphrase): If you think we lie to the public you are mistaken; but if you think we tell the truth you are equally mistaken.
And so we have the Bush Administration's dealings with what it now refers to as the NSA program which the President has described. Before the program was revealed in the New York Times, the President and the Attorney General, in discussing the authority to conduct warrantless surveillance, may not have lied, but they certainly did not tell the truth.
No fair-minded listener open to the arguments of each side could reach any conclusion but that they were following the requirements spelled out in FISA. We now know they were not.
There are other examples of this deception, including the testimony by General Hayden before Congress which Michael Fuchs and I discussed in a posting on ThinkProgress. Here I want to focus on the public statement by the President and the testimony by Gonzales because they are classic examples of not telling the truth and because the Attorney General defended both statements at the Judiciary Committee hearing yesterday. Since he steadfastly refused to answer any questions, this was almost the only interesting development during a very long day. (I will discuss the few other interesting issues in another post later this week.)
The Democrats had intended to drive home their belief that both the President and the AG deceived the American people by playing the videos of the episodes at the hearing. Chairman Specter, who deserves commendation for conducting the hearings, refused to permit the videos to be played. I urge you to listen to them since they capture what happened very clearly. (Video of Bush speech and video of Gonzales/Feingold exchange at Gonzales 2005 confirmation hearing). As you listen, ask yourself two questions: Would any fair-minded person believe the explanation offered by the AG? Second - and in my view equally important - would any listener come away believing anything but that warrants were being gotten for all electronic surveillance of the kind included in the NSA program?
The president was asked about roving wiretaps. He defended them and then turned to the more general question of electronic surveillance and assured his audience that no such surveillance took place without a warrant:
Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.
Even if you believe it passes the "do not lie" injunction, you cannot possible argue that it passes the "do not deceive" test.
This same point is highlighted in the exchange between Senator Feingold and Gonzales:
SEN. FEINGOLD: I — Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he — does he have that power?
MR. GONZALES: Senator, this president is not — I — it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
This is even worse since there could not be any doubt what Feingold was asking. Even if the AG picked his words very carefully and did not actually lie (judge for yourself) he could not have had any doubt about what the Senator was trying to ascertain and what (wrong) conclusion he must have drawn from the answer.
This exchange constitutes a crime and the Judiciary Committee should refer the matter to the Justice Department and ask for the appointment of a special counsel.
Beyond the legal requirement of government officials not to deceive the Congress is the question of trust, to which many members of the committee, Republicans and Democrats alike, alluded. The nation is safer when the Congress and the president work together to craft solutions which protect national security and civil liberties. When an Attorney General defends carefully crafted answers which deceive, he destroys that trust.