Some one needs to go through the transcript of Gonzales for Atty. Gen.

[boston bean]

And look at the questions that were asked of him and see if we can read anything into the questions or if he lied about any of this.

[bigtree]

1. Responding to Gonzales' claim, Wisconsin Sen. Russell Feingold (D) said

on NBC's Today Show: "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States…. The president has, I think, made up a law that we never passed."
________________________________________________________

Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless


"The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons (the President) determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident(s) of waging war," and both of these Executive actions are such "fundamental incidents" of waging war."

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.

the rest: http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html


Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005) http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html