Turned Upside Down

"Smiling Faces, sometimes, they don't tell the truth."

Attorney General Alberto Gonzales has always been the most smoothly smiling face of the Bush administration. Not given to Dick Cheney's lop-sided sneers or the President's bouts of petulance, Gonzales maintains a placidly smug, smiling countenance as he parries questions about torture, rendition, warrantless wiretapping, and the other criminal activities of the Bush administration.

Gonzales is also the most sovereign liar, a guy who is absolutely convinced of the Bush administration right to refuse to share power, seek approval, consult, or cooperate in any way with Congress, the courts, the media or public opinion.

The current controversy over the Bush administration's refusal to consult with the FISA court over warrantless wiretapping is a great example of the way that the Bush administration looks for opportunities to refuse cooperation. It also represents a rare at least temporary victory for the Bush administration.

A 1978 law set up a system where the executive branch would seek the approval of a secret court, the FISA court, for national security wiretaps outside the normal process. That approval was either always or almost always given.

After 9-11, the Bush administration stopped seeking FISA court approval for the wiretaps with Gonzales citing the need for "speed and agility." It turned out, however, that the FISA law allows the executive branch to initiate the wiretaps and then seek approval later. It would be more accurate to say that the Bush administration refused to cooperate with the FISA courts just because the law said they had to. This way, the Bush administration was not obliged to seek the approval it would have gotten anyway.

This week, the Bush administration announced an agreement with a FISA judge that they could proceed with wiretaps without seeking FISA court approval. In other words, the Bush administration now has FISA court approval for avoiding the FISA court. When Gonzales testified before Congress, he looked like the cat who had swallowed a canary.

The victory may be temporary though. Unlike Congress, the courts don't have to generate a broad political consensus in order to override administrative abuses. In the final analysis, the courts have proven to be the only immediately effective check on the Bush administration.