Playing the 'Not a Lawyer' Card
by Bill Shein

Before addressing the most outrageous claim made by Attorney General Alberto Gonzales during Monday's Senate hearings about domestic spying, let's examine a few other things.

First, is Alberto Gonzales really the nation's top lawyer? Because he offered mostly boilerplate, "war on terror" political rhetoric in response to specific legal questions posed by Democrats and Republicans alike. In doing so, he was either deflecting attention from the administration's illegal activities or the man is simply out of his depth.

Second, the "operational details" claim, used by Gonzales to avoid answering dozens of questions, remains the central issue. Congress is not concerned with the name of the spying program or if the National Security Agency has an intramural softball team. It's how the program is carried out — its "operational details" — that violates the Foreign Intelligence Surveillance Act's warrant requirement.

Third, the issue is not wiretaps, which are an important law-enforcement and national-security tool. It's oversight — a distinction the president would like you to forget every time he repeats a line crafted by the White House Office of Catchy and Misleading Slogans: "If someone is talking to al Qaeda, I want to know."

So do we. Just get a warrant — under FISA, this can be done retroactively a few days later — or ask Congress to change the law.

Now for Monday's most outrageous claim: When Sen. Dianne Feinstein, D-Calif., asked about the president's April 2004 statement that all eavesdropping in the United States requires a warrant — "even when we're talking about chasing down terrorists," the president said — Gonzales began his answer, "As you know, senator, the president is not a lawyer."

Put simply, Gonzales argued that even though the secret wiretap program had been under way for several years, President Bush, as a non-lawyer, didn't fully understand it.

This argument is not new. When confronted with violations of domestic and international law, the president and his appointees are quick to claim ignorance of the laws they're sworn to uphold — a dishonest and dangerous attempt to avoid accountability.

Here are a few examples:

"I'm not a lawyer. My impression is that what has been charged thus far is abuse, which I believe technically is different from torture." — Secretary of Defense Donald Rumsfeld, addressing the Abu Ghraib scandal (May 4, 2004).

"Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities." — Secretary of State Condoleezza Rice, defending the eavesdropping program on NBC's "Meet the Press" (Dec. 18, 2005).

"I'm not a lawyer." — General Michael Hayden, deputy director of national intelligence, while defending the legality of the eavesdropping program (Jan. 23, 2005).

"See, I'm not a lawyer, so it's kind of hard for me to kind of get bogged down in the law. (Applause.) I'm not going to play like one, either. (Laughter.)" — President Bush, speaking about privacy and the Patriot Act (Apr. 20, 2004).

"I'm not a lawyer. If I was, I probably wouldn't be where I am today. (Laughter.) Not that I have anything against lawyers. Looking around the room, I'd guess that about half of you a year ago were in Florida. (Laughter.) And I can assure you we do deeply appreciate all those lawyers who went to Florida." — Vice President Dick Cheney, speaking to the Federalist Society (Nov. 15, 2001).

So for the Bush administration, lawyers are good for a joke and useful at election time. Meanwhile, playing the "I'm not a lawyer" card is a handy way to defend lawbreaking.

Does anyone in the executive branch respect the law? Why didn't a single senator ask Alberto Gonzales if Barney, one of the president's Scottish Terriers, was responsible for crafting the administration's legal rationale for domestic spying?

Because on Nov. 10, 2004, the White House Web site's "Barney Photo of the Day" actually featured a photo of Barney with the following caption: "Although not a lawyer, nor human, Barney waits outside the Oval Office to inquire about being named the next White House Chief Counsel."

No doubt the attorney general would have declined to answer, arguing that Barney's role represents "operational details" that must remain classified.

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Bill Shein did not make up that Barney photo caption. It's real.

(This column originally appeared in the Berkshire Eagle newspaper on February 8, 2006. Join a discussion about this column in Bill's blog. And read Bill's previous column, "Warm Weather is Cold Comfort").