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Gonzales tried to bolster the AUMF argument on Monday by arguing that it was actually "more specific" than FISA because it pertained to al-Qaeda, while FISA dealt with wiretaps generally. That would be more plausible if Congress hadn't amended FISA after the AUMF (with nary a mention of the supposed exemptions created there) precisely to give intelligence agencies greater latitude to pursue terrorists.
If the administration's legal case emerged from Monday's hearing in less than sterling shape, its political position looked relatively robust. As several Republican senators smugly observed, Congress retains the "power of the purse" as a check on executive branch programs of which it disapproves, but no Democratic legislators have yet dared propose using that power to defund the NSA program. That only proves, as every teenager soon learns, that it's easier to ask forgiveness than permission—though the Bush administration appears congenitally incapable of even the former. As economist and political theorist Charlotte Twight has observed, the manipulation of political "transaction costs" has been a key to the growth of government power over the last century. A program that might never make it through Congress if both houses had to explicitly approve it might nevertheless prove politically impossible to halt once underway.
Gonzales' appearance before the Senate, then, amounted to an extended bluff with a weak legal hand. It only remains to be seen whether any legislators have the fortitude to call him on it.