If the Senate Judiciary Committee hearings on the NSA intercept program were a boxing match, the Democrats would be ahead on points after the first couple of rounds – but just barely.
AG Gonzalez acquitted himself well but was at a huge disadvantage. Because of the secrecy of the program, he was unable to reveal details that could have buttressed his case that the Administration’s warrantless interception of American citizen’s communications was inherently legal based on both exceptions to the FISA statute and the authority granted by the President by Congress when that body authorized the use of military force after 9/11.
Necessarily having to engage in generalities, the AG was at his worst when penetrating questions by Senators Leahy and Feinstein went to the nuts and bolts of whether or not the program spied on American citizens where both ends of the conversation took place in this country. He was at his best when he carefully outlined the program’s legal rationale in a very good opening statement that fleshed out the Department of Justice white paper originally claiming that the Authorization to Use Military Force (AUMF) was a trigger that allowed the President to use expanded powers granted him by the Constitution.
Exhibiting none of the personal attacks that came off so poorly in the Alito hearings, the Democrats mostly behaved themselves, even going so far as to suggest that the program may be necessary in order to protect the country. With the exception of Russ Feingold whose wildly exaggerated charges of illegality was in sharp contrast to the more subdued charges of his fellow Democrats, it was clear that the Democrats strategy was to point to certain inconsistencies in the Administration’s defense as it has emerged over the last 6 weeks and raise questions about both the legal justification for the program and the way it has been administered.
Republicans on the other hand performed a Kubuki dance with Gonzalez, making statements of support that Gonzalez would pick up and expound on. There were two notable exceptions. Senator Specter said he was “skeptical” that the AUMF rationale for the expansion of Presidential powers to justify the intercept program would fly. And Senator Lindsey Graham actually made what I thought was an excellent point:
“This statutory force resolution argument that you’re making is very dangerous in terms of its application for the future.” He added, “When I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”Graham said that “it would be harder for the next president to get a force resolution if we take this too far. And the exceptions may be a mile long.”
I think Graham is exaggerating but his point is well taken. Perhaps it isn’t such a bad thing that Congress, when authorizing the use of force, think about how a President might use this power in the future.
From a political standpoint, the Democrats bloodied the AG when pointing out some of the President’s statements on the issue of warrantless searches in the past as well as the Administration’s curious reluctance to amend FISA to include the program despite several opportunities since 9/11 to do so. The AG’s explanation – that the President was concerned about the program’s secrecy – seemed a little lame and forced at times and I think the Dems scored. This WaPo article sums up some of the inconsistencies authored by Bush over the last several years:
It is one of several explanations on the topic from Bush and his aides, who have provided at least two separate rationales for why they did not ask for statutory authority for the program. Attorney General Alberto R. Gonzales said the administration had considered seeking legislation but determined it would be impossible to get, adding later in the same news conference that authorities did not want to expose the program’s existence. White House spokesman Scott McClellan has echoed the latter point, saying the administration feared that details of the classified program would be exposed publicly.The subject is one of several elements in the NSA spying debate that have been clouded by apparent contradictions and mixed messages from the government since the program was revealed last month. The confusion has cleared up little in recent days, as the White House has embarked on a multi-pronged campaign to defend the legality of the controversial program.
Gonzales and other officials, for example, have repeatedly said that the Foreign Intelligence Surveillance Act (FISA), which governs secret surveillance in the United States, is too cumbersome to be applied to the NSA eavesdropping program. Yet the Justice Department raised concerns about a 2002 bill to loosen FISA requirements.
There is also an issue lurking in the wings that may come out and bite the Administration in the near future. And that is that the NSA program has undergone several revisions since it was initiated, mostly at the behest of lower level DOJ attorneys who feared the program went over the legal line and spied on Americans without a warrant. Attorney General Ashcroft apparently addressed many of their concerns but the information begs the question; how big is the scope of this program and are there other aspects to it that may in fact be illegal?
Democrats wish to call these witnesses but the AG brushed them off with the statement that they were all on board with the program in its current incarnation. If Specter and Graham were to vote with the Democrats to call the DOJ dissenters, expect the Administration to resist strenuously even to the point of claiming executive privilege in the face of subpoenas.
If it comes to that, there will be blood on the floor of the hearing room as the AG will be hauled back and forced to justify Administration intransigence. It won’t come to that if the Republicans hold firm but that should be an interesting sidebar to watch over the course of the hearings.
8:31 pm
Rick,
Terrific site, my favorite blog. Although I did not
see the hearings today, I did hear some excerpts.
While you may be correct that the democrats are slightly ahead on points, on the pr front this will
prove to be an unmitigated disaster for the aclu crowd
and their supporters. That the democrats and a few
Republicans are whining about enhanced Presidential
authority during a time of war, makes them look weak
on national security and timid in defending the safety
and security of the American people. I believe this will be the 2002 equivalent of airport security issue
that cost a few democrats their safe seats. This is one
of those defining issues that move voters. I think the
democrats have overreached…again.
8:56 pm
I don’t necessarily agree that they scored more points today, but they certainly were calmer than they were last week with Alito. Kennedy even apologized for being absent to attend asbestos talks (the same talks that weren’t as important as stopping Alito, but are now more important than “stopping the growing Bush dictatorship”).
But let’s say they are ahead and remain ahead on points, there’s still that TKO at the end—currently manifesting itself in the torching of foreign embassies and burning of Danish flags; is there anyone here watching that doesn’t see the Stars and Stripes in those red and white Danish flames?
9:23 pm
AUMF does not authorize the wiretaps at issue. The case is not even close. Moreover, references in AUMF to the so-called War Powers Act of 1978 confirm that the necessary prerequisities to the exceptions idenitified in FISA did not and do not exist.
The legal case is so weak. I used to write appeals in California for criminal defendants. We were required to make even the weakest of arguments as part of our duty to defend our clients. When I wrote them, I knew they were weak, but I also knew I would not be subject to sanction, given that I was representing a criminal defendant. In short, I was making a loser argument that I knew was a loser, but that I had to make anyway.
That is the position that Gonzalez is in. No one who understands the legal arguments takes them seriously at all, excepts those paid or ideologically driven to do so.
The legal case is clear – even Specter knows that. The real issue on the table is when the president has clearly broken the law, and his party is the majority in Congress, what can or should be done. That is the heart of what is going on right now. It is a test for our republican form of government. How it comes out has the potential to effect the country for generations to come.
History will not judge kindly those who defend the President’s actions. They will be lumped together with those who defended the Alien and Sedition Act, the internment of Japanese during World War II, et al.
9:50 pm
Make that “affect.”
9:54 pm
The dim-wits came out ahead like Seattle did. I don’t see how you can even say that with a streight face. Maybe you dozed off. All the leftie’s did was disgrace themselves before the nation, again. They really showed that they could care less about the safety of the people in this country. They were actually defending and supporting the terrorists rights and I hope they get paid with 10 aircraft roaring through (or part of the way through anyway) the Senate when it’s in session. That has got to be the biggest bunch of fools in the world and someone elected them???? Na, evidently all of them have the money to buy their seat since they are too stupid to actually win anything. I guess they’re like the dim-wits in one of the small towns around here, all a vote cost is a bag of pork rinds or potato chips. Does that mean the voters are the stupidist of the stupid? The dim-wits are like the Arabs. I always thought the Arabs were driving the sheep, goats and camels, now it’s clear they are not herding them but following them so they can get home. At least the animals know where the food and lodging is.
10:10 pm
Now, now, scrapiron, quit appealing to the rational parts of our brains.
To continue what I said earlier, the hearings serve the Bush cause well because, although the spying is clearly illegal, the somewhat complicated nature of the legal issue won’t get communicated thru the hearings. The Bush administration doesn’t need to win the legal case or even tie, if scrapiron is representative of GOP supporters. Although others have said it more eloquently, the GOP case is that Al Qaeda is so big and scary that Bush must be able to break the law. (Even though he’s not – or just FISA, not Article II, or whatever. The administration is still not clear on this point. Of course, when you have a bad argument, and have said inconsistent things in the past, that tends to happen.)
No GOP senator would ever do anything to harm Bush in the NSA hearings. Ever. The Dems are in the minority. Hence the outcome of these hearings is immaterial, and thus so are the hearings.
10:32 pm
the GOP case is that Al Qaeda is so big and scary that Bush must be able to break the law.
Actually the [national security] case is that, in concordance with both the AUMF and the FISA Court’s own opinion in that 2002 sealed case, the President does have the authority and his action is legal. Your paraphrase is the equivalent of a cartoon of Mohammed. Are you unable to understand the language that AG Gonzalez is using?
The AUMF authorized the President to “use any and all necessary force.” How is it possible to properly use that force against terrorists without doing the intelligence work necessary?
12:30 am
Giacomo asks: “How is it possible to properly use that force against terrorists without doing the intelligence work necessary?”
The answer seems so obvious: by following the law and if that law somehow prevents the President from ‘doing the intelligence work necessary,” seeking to have the law changed.
We are either a nation of laws, or we are not. At the moment, it appears that we are not.
2:01 am
Ah, now it’s clear why Gonzales did all that smiling yesterday. He knows fascist Karl has all those Repug senators by the balls. They’ve all gotten the word: Step one inch out of line, guys, and you will be on the LIST.
Which will mean no more big $$$$, no more face time with the Preznit, and you might even find yourself framed as soft on terra. In this country, that’s the kiss of death.
He’s smiling, too, because he knows that the Democrats are too busy pissing their pants and covering their asses to mount any serious challenge, no matter WHAT laws Preznit and his fascist gang decide to break.
Karl is is fabulous form these days, no matter what that special prosecutor is doing with his Plame grand jury. Karl saw Hillary’s face when Bush alluded to Bill during SOTU. Karl also heard Jon Stewart say “That look is where a boner goes to die.”
But Karl just smiles, ‘cuz his boner is still riding high. So grab your ankles, boys & girls. The fun has just begun.
2:31 am
John you are pathetic. In fact everyone now realizes that you are simply a leftie troll and will be deleting your comments as Outside The Beltway does already. Copy pasting your identical garbage all over the web, including my site simultaneously only serves to show the left’s utter desperation
3:28 am
[...] 8217;s Blogging: Martin’s Musings A Blog For All Joe’s Dartblog Stop The ACLU Rightwing Nuthouse Michelle Malkin Technorati Tags: Al Qaeda nsa Wire [...]
9:08 am
[...] lert? Filed under: Republicans — Leonidas @ 9:08 am The usually excellent Rick Moran exhibits some definite RINO tendencies today: claiming tha [...]
11:40 am
[...] with that? Truly, this controversy is less about security than it is about faith. I offer this example from Right Wing Nut House [emphasis added]: AG Gonzalez [...]
12:53 pm
“...the spying is clearly illegal, the somewhat complicated nature of the legal…” Thus spake mkultra. Golly whillakers, sir. I ain’t no lawyer or nuthin, but just from a limb-struck ole boah’s POV, there’s them in yer very own perfession that disagrees with ya. I heard one say that the 4th amendment allows reasonable searches. An stuff like where statute conflicts with the Constitution, the ole C document pervails. Even heard some a them there judge peeple think it’s ok if the preznit lissens in to ketch spys. But if you say it’s illegal, I guess I gotta take yer word fer it, ‘cuz I’m like one a them there unwashed an it’s sooo complicticated I’d never understand. Thank yew very much, sir.
1:34 pm
In response to mkultra, I’ve read much more compelling arguments from people in the legal profession who don’t ask us to accept their assertions without question, who recognize their own bias when discussing their legal analysis, and who try to use the merits of their argument rather than their pedigree to advance their position. While I expect that our grasp of legal issues is far superior to my meager understanding, I can always rely on others who are qualified to refute you. Thank God for Powerline eh?
Btw, I’m not sure how useful criminal defense experience is in evaluating constitutional issues regarding executive authority, but at least you get to learn cool latin phrases like “mea culpa” that can prove very handy in life.
2:17 pm
The FISA court itself ruled in 2002 that the President has inherent constitutional authority to conduct warrantless surveillance to obtain foreign intelligence information and hence the FISA law could not restrict this authority. See the bottom of page 11 of the case In Re Sealed Case at http://www.law.syr.edu/faculty/banks/terrorism/FISCRedit022003.pdf
2:28 am
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