" '...judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who 'apply an activist philosophy that stretches the law to suit policy preferences.' ”
“ 'We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments,' Gonzales says in the prepared speech. 'That, for example, a judge will never be in the best position to know what is in the national security interests of our country.' ”
I like how Gonzales carefully places Congress into the group that judges should defer to, and I agree with the MSNBC piece that he's probably referring to the warrantless surveillance decision by U.S. District Judge Anna Diggs Taylor in August 2006, but Congress only came into the picture very recently. The program has allegedly been going since long before 9-11, but as we well know, the Bush Administration seeks to use 9-11 as an all-purpose excuse for just about anything. The September 11 Commission pointed out that the Bush Administration's charge that the program might have been able to prevent 9-11 from occurring was disproven by the fact that the Clinton Administration had information on two of the leading hijackers in January 2000, but that the Bush Administration later lost track of them. The fact that 9-11 occurred cannot be taken as proof that the warrantless surveillance program was not operating before 9-11.
Congress did come into the picture when the "Rubber-Stamp Republicans" sought to pass a number of bills authorizing the warrantless eavesdropping, but none of the bills were finalized before the Congress switched over to Democratic control. While Democrats may wish to legalize the spying, they have no mandate to do so. As no one outside the Administration and some sworn-to-secrecy Congresspeople were even aware that the program existed, Gonzales really should be just saying "judges generally should defer to the will of the president" and should leave all mention of Congress out of it.
Fundamentally, the assertion here that there are certain issues that judges are not competent to rule on is just absolutely the most despicable, un-American, pro-dictatorial assertion imaginable. It completely contradicts two-plus centuries of American law and utterly lacks even the pretense of a dedication to democracy. When Judge Taylor ruled that the warrantless surveillance program should be terminated immediately, she was not making a policy decision, nor did she go outside her expertise or authority. Her decision was solidly grounded in the law, which is why the blogger Glenn Greenwald has been able to compile an impressive list of blog posts which support her decision.
Gonzales is grasping at straws here. He's trying to justify blatant law-breaking on the part of his boss and simply has no serious arguments with which to do so.