l. The Senate Hearings On Bush's Illegal Domestic Surveillance Program - Live

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Would You Buy A Used Kiddie Cart From This Man?

Here is what is at stake in the Senate Judiciary Committee hearings that begin today, in terms of our constitution, our way of life, not to mention our fortunes and our sacred honor: I’ve quoted this from Katherine at Obsidian Wings before, but it’s so thoroughly and clearly to the point that it bears more reptitions than just this one:

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it’s limited by the country’s laws, but they’ve got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen—no need for a charge, no need for a trial, no need for access to a lawyer. What if they’re found not to be an enemy combatant? We can keep them in prison anyway, and we don’t have to tell their families they’re alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don’t need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes—if the President decides that we need to torture a prisoner for the war effort, it’s unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was “unnecessary” but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That’s the power they claim. At what point are we going to take that claim seriously?”

Well, today is our chance, and there may not be that many more chances to make clear to our fellow Americans what is at issue and at stake here. Paradox, blogging at The Left Coaster makes that point in this post, which, in addition, provides an excellent raison d’etre for why we decided to live blog these hearings.

One would think the base in the blogosphere would hopping with excitement at the coming attack and opportunity to serve, but all is quiet. There are no email blasts from Senate offices, no elected rep teams organized to fling quotes and talking points at the press, no bloggers coordinating fifty possible small tasks directed by the party that would help blatantly expose the criminality of Bush and force him to resign from the shame of it all, never mind coming impeachment. Yet…there’s just nothing, nothing at all.

Make no mistake, Bush and Cheney are more than happy to take this fun little diversion on—why, if the Democrats want to precisely elucidate their many felonies in the matter every day until the November election, nothing would please them more. The administration is positive that not only can this outrageous breach of our constitution be weathered short term, but that it also presents the perfect opportunity to win politically again long term.

God bless America—committing felonies is the surest way to win elections. As incredulous as this amazing scenario may seem to the detached observer it’s 100% true, for Bush and Cheney are totally sure they can frame the felonies and their exposure as Democratic efforts to help terrorism, aid Al Queda and be wussy traitor-like pansies hating America once again.

Steve Soto of the same blog, anticipates that Democrats, following a script Peter Daou has identified as the template for Bush’s many non-stick scandals, will be ineffective and lose this argument.

I’m not as sure as either Glenn Greenwald or Steve that Democrats are actually afraid to take this on, but their hesitation is understandable.

The press decided early on the issue of warrantless electronic surveilance is a loser for Democrats, and having created the CW, aren’t anxious to see it proved wrong. Pundits continue to quote polls that don’t, in fact, show what is claimed - that most Americans are more afraid of another attack than they are of a President who claims not merely that he is above the law, but indeed, that he is the law. Eriposte, also blogging at The Left Coaster, does his usual remarkable job of bringing facts and analysis to the issue of what the polls actually say. Not only should you read it, but you might consider sending the link to any number of Senatorial offices, from Senator Reid on down, and maybe we shouldn’t leave out Mrs. Pelosi.

I just watched Glenn Greenwald do an excellent job on C-Span defining the meaning of this particular scandal, in the face of an implacable opponent, Robert Turner, listed as a Professor of something in Virginia, but who seems to have spent a good deal of his resume serving in Republican administrations. Bristling with preemptory energy, Turner started out with the Church committee of the seventies, and its utter lack of ability to find anything in the record of the intelligence community that anyone with any sense should have worried about, which led him smoothly to the conclusion that the FISA law has been unconstitutional since the time of its original passage.

Glenn stayed focused, tough, and reality-based, stressing that the version of constitutional history he was hearing from the good professor could only be called radical. Still, it was easy to see how difficult it can be to engage the arguments made on behalf of this president. They came fast and furiously from Professor Turner, and Glenn skewred several of them, but Turner was a consummate propogandist, filled with facts that aren’t true, media citations which don’t confirm what he’s claiming…well, you don’t need me to go on…all I need say is that listening to Professor Turner was like listening to the President, and the Vice-President, and Ken Melhman, and doubtless, exactly like what listening to AG Gonzales will be, today.

One example of what I mean: Mr. Turner, introducing his position, mentioned Coleen Rowley, and the FBI’s inability to get the FISA court to agree to a wiretape of Moussaoui. As you probably know, Ms. Rowley, currently running for congress as a Democrat, has debunked that particular talking point; her explanation, availble on her website, is well worth reading,

Glenn Greenwald is live blogging the hearing from inside the chamber; he’s more expert than we are, but we think at least two blogs ought to be keeping track of things, because so far, the netroots aren’t that far ahead of the Democrats on this one…so stay tuned, and start thinking how we can make the most of these hearings.

You can check out Glenn’s analysis, plus lots of other great things he has up, including a preview of Senator’s Kennedy’s line of questioning, by clicking here.

Another quick example of Mr. Turner’s idea of argument; at one point he analogized that the FISA court was to a President as a demand for a warrant would be for a soldier on a battle field before he takes a shot at an enemy? I should also note that he appeared to have someone, or ones, possibly students, just off camera, handing him researched talking points.

Also please note, that the callers, who were few because of the Professor’s long-winded answers, were more line with Glenn’s position than with Mr. Turner’s, and those callers had an impressive and impassioned grasp of the facts.

I’m telling you, this is a winnable argument.
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Monday, February 6th, 2006

Senator Spector has called the hearing to order. The Attorney-General will be the only witness today, and as Spector notes, probably all day.

The questioning will be in ten minute per Senator bites, with multiple oppportunities provided through-out the day.

Specter’s introduction is interesting; while he frames the hearing as being about something truly big, a big subject, in subtle ways you can see him accomodating the administration. For instance, although the AG is willing to be sworn, Spector has determined that is not necessary. This creates a small dust-up with Russ Feingold especially curious about why not. Feingold is the Senator who is on record as feeling that Gonzales was less than truthful in a previous hearing. Leahy wonders why not, too? Specter points out that such is not usually the case when someone is a confirmed AG, but Leahy remembers such was not the case with AG Reno, who was often sworn during appearances on the Hill.
Specter insists on his right to decide this issue.

As I said, despite Specter insisting that hearing is about a big subject, he is managing to define it down to a level that is a contained as possible. Interesting sidelight, he has also decided that no video tape will be shown, since transcripts are available - clearly this was a request by Democrats, and undoubtedly one of the pieces of video is of the President reassuring us all, during the 2004 campaign, that when we hear about electronic surveillance we should realize that warrants are involved, nothing has changed.

Leahy, as ranking member, got a few minutes to introduce his own concerns about the subject and they were riveting. Energetic and passionate, Leahy went straight at the central absurdity that Rove et al are pushing - to wit, the differences on this issue of warrantless wiretaps cannot be understood along a divide between those who take terrorism seriously and those who don’t. Leahy takes it very seriously; he goes to work everyday in a building that was targeted by “the terrorists.” He reminds everyone why in 1978 the congress of the United States passed the FISA law, after it was revealed that abuses of the privacy of American citizens by President’s of both parties had been going on for decades; he also tied Bush to Nixon’s view that the President has unlimited power, and he reminded Gonzales that all members of congress post 9/11 had been anxious to provide the administration with all the tools they felt they needed to fight Al Queda and capture Bin Ladin; Leahy manages to express a rueful wish they’d succeeded when they had the chance.

Leahy closes with a message for AG Gonzales and his administration: congress is a co-equal branch of government, we write and pass the laws, and if you don’t ask us to amend a law you feel doesn’t allow you to protect America, that does not give you the right to break that law.

Gonzales gives his own presentation of the issues. It starts with 9/11 and esssentially ends with that…we’re at war, we’re at war…you’ve heard or read all these arguments before.

I’ll take a pause here and start a new post.

2. The Senate Hearings On Bush's Illegal Domestic Surveillance Program - Live

Okay, it’s the lunchbreak.

Gonzales didn’t say much new that he hasn’t said before, and the impression one gets from he does say is not the impression one gets from yesterdays Washington Post story; in fact, Gonzales keeps insisting that what the administration is doing is consistent with FISA, that it is aimed only at Americans who have a link to Al Queda, in which case, one wonders why they have failed to go to the FISA court, either to get warrants, or to explain to the Judges what the NSA is doing and why warrants are a problem.

The closest Gonzales got to explaining why they haven’t gone to FISA was the cumbersome nature of the process.

Specter keeps expressing profoudn concerns, profound doubts, but he isn’t going to require internal memos be produced, at least not for now, and in other regards one gets the feeling he’s pretty much in the tank for the administration; guess he really wants to live out his days in the Senate being chairman of that commiittee; let’s disappoint him, shall we?

Well, in my view, the Democrats did not disappoint. They are all energized, they all seem to know the facts, and none of them seem willing to take the usual shit Republicans are shoveling.

Leahy was terrific on his first round, cutting off Gonzales when, in his first answer, he tried to reference what happened on 9/11; Leahy reminded everyone that he was completely aware of what happened, he was there; it had happened to him as well as to any and everyone in the Bush administration. He also made it clear that the differences that might develop on this issue have nothing to do with whether or not this of that person wants to subdue America’s enemies, and that a reasonable assumption is that all American’s share that desire. Leahy spent the rest of his time trying to get some sense of how close to the Sept 14th congressional authorization of the use of force, and the President’s signing of it on the 18th was to the passage of the Patriot Act and the amendments that were made to the FISA law, the point being, since we were cooperating with you, since it was our desire to give you all the tools you needed, why didn’t you ask for whatever revisions of FISA you thought you might need.

Leahy also asked if Gonzales’ justifications for the existing program would allow the government to open mail; Gonzales didn’t answer the actual question asked, insisting instead that wasn’t happening, and refusing to say more for security reasons, a ploy he used more than once.

Hatch did what he did with Alito; walk Gonzales through all the administration talking points. He was more irritated than passionate.

Grassely set the tone for most of the Republicans who would follow; bristling outrage, not at the administration, but at the leaker and the NYTimes. He wanted to know if the administration was going after that leaker, and Grassely wanted us all to know that the Plame dustup, wherein only a single CIA operative had her professional life ruined, was nothing compared to the damage that has been done to US security as the result of this leak.

Hmm…I WONDER HOW HE CAN BE SO SURE OF THAT, SINCE NONE OF US KNOWS ANYTHING ABOUT THE PROGRAM, HOW IT WORKS, IF IT WORKS…sheesh, these idiots don’t even try to be coherent. I think it was Grassely who also blamed those Senators who were briefed on NSA program for not raising the issue sooner, if they thought it was such a terrible idea, completely overlooking what people like Rockefeller and Jane Harman have told us about what the terms of their briefing were. I think it was Grassely who raised the specter of Moussaoui, and the inability of the FBI to get a warrant to get into his computer, but as I’ve mentioned before, the problem wasn’t with the FISA court, it was with Agent Rowley’s supervisor, who refused to seek a warrant.

How about generating some calls to the staff of Democratic Senators on the committee, reminding them to correct this talking point?

Kennedy took an interesting and quite different tack from other Democrats, and his tone was charmingly different. He embraced Gonzales’ emotional connection to 9/11, which Kennedy reminded the AG, was one which Kennedy shared; after all the Senator was with Mrs. Bush, preparing for testimony on NCLB, when 9/11 happened. Nice one, Ted.

What Kennedy insisted on was that a program which takes chances with legality could put us more at risk, more insecure, because we could find, after using intelligence to actually stop Al Queda, we might find we couldn’t use our evidence to put these guys away. Kennedy went on to contrast the Bush administration with the administration of Gerald Ford, and with Ford’s Republican AG, who were dealing with electronic surveillance because of enormous improvements in technology; the Ford administration approach was to consult with congress, full consult with them, and with outside constitutional authorities. Again, nice one, Ted.

It’s clear that the Republicans on the committee are trying very hard to paint this as a partisan divide, but Democrats seem aware of the ploy; I think it was Leahy who submitted for the record a piece by Bruce Fein, conservative member of the Reagan administration, which criticizes the refusal of Senator Pat Roberts to hold a hearing on the NSA surveillance program.

Biden was okay; a lot less wordy and folksy than usual; he asked a series of questions, hurrying the AG to give answers. One particularly interesting tack - Biden wondered why the AG emphasizes Al Queda to Al Queda communication abroad, but the administration seems uninterested in Al Q to Al Q communication inside the country, or is that part of this program that we don’t know about. Gonzales was definite; no, they are not listening to Al Q to Al Q here. Why not, Biden asks? If you can believe it, Gonzales’s excuse for not worrying about that - look at all the heat we’re getting for this.

John Kyl was a less scattered version of Grassely, but he did pick up on Biden’s point, commenting that listening inside this country to Al Queda to Al Queda is something we should be doing.

Feinstein was absolutely terrific, really, really good.

Sorry, the afternoon session is starting…I don’t want to miss out.

I’ll come back and fill in the blanks on this session.

Take it from me, Democrats deserve a good press on this one; can’t help wondering what the Milbanks are going to do with today.

I haven’t been able to check out Glenn; hope he has a similar positive response, at least to the Democrats.

3. The Senate Hearings On Bush's Illegal Domestic Surveillance Program - Live

Lunch break is over, afternoon session is beginning.

Gonzales has agreed to come back tomorrow, for what purpose, it’s difficult for me to see; there is no real discussion going on, no real engagement, except on the part of Democrats, who are meeting a stone wall in Gonzales.

Senator Feingold is out of the gate and charging hard. He starts out reiterating his disappointment that General Gonzales wasn’t sworn in, and then he goes right to Feingold’s sense that Gonzales wasn’t truthful in answering a specific question about Presidential authority asked of him by Feingold at Gonzales’ confirmation hearing.

Gonzales insists that there is nothing inconsistent with what he said then, and what he is saying now. Feingold waltzes around for a bit, then cuts it off, but not before making it starkly clear that he considers that Gonzales was fundamentally dishonest during his confirmation hearings.

Feingold has some more crisp questions, not that different from others, but what is notable about this Senator is his ability to be tough without seeming to attack.

Whoops, that’s not how Lindsey Graham sees it.

Well, this is fascinating. I should note that Feingold started out by reminding everyone that this is not a partisan issue, and specifically hailed those Republican members of the committee, including Graham, who are on the record as questioning the administration’s constitutional logic and reasoning.

Senator Graham is having none of it, as he first frames what he wants us to think is a fairly tough disagreement with the administration, as fundamentally different from what we’ve been hearing from Democrats, which he characterizes as accusatory, partisan, attacking; Graham wants to collaborate with the administration, not have a conflict with it. But with Democrats, he’s fine with conflict, apparently.

DAMN, THIS IS WHERE THE DEMOCRATS SHOULD COME OUT AND POLITELY PUT GRAHAM IN HIS PLACE. THEY SHOULD TALK ABOUT HOW MUCH THEY’D LIKE TO COLLABORATE WITH THE ADMINISTRATION, TOO, AND ASK GRAHAM WHY HE NEVER HAS ANYTHING TO SAY ABOUT COMMENTS LIKE THOSE MADE BY KARL ROVE, WHAT, A WEEK AGO, AND BY THE HEAD OF THE REPUBLICAN PARTY JUST THIS SUNDAY.

Graham asks some good, hard questions about the constitutional analysis Gonzales, representing the administration, is using, but I’m not convinced his real aim isn’t to clean up their act just enough to pass muster, without really dealing with the fundamental constitutional conflict here.

Corwyn, like the other Republicans is really concerned with not questioning anything this administration does. What I’m seeing here is so shameful, such a dereliction of duty, not only to the country at large, but to the institutional power of the congress itself.

Durbin, up now; he picks up the meme of FISA being a useful tool; it’s not that, he insists, it’s a constitutional statuary limitation on the unlimited power of the president to wiretap or otherwise use electronic suveilliance.

Gonzales insists that what they are doing is totally consistent with FISA.

Durbin says no; he’s listened to Gonzales’ analysis of the statute and finds it woefully misguided. FISA is the exclusive means by which the President can conduct surveillance, and the AUMF says nothing to contradict that. Durbin also takes on the constant references by Republicans to the Supreme Court’s Hamdi decision, pointing out that the court deliberately narrowed the decision’s focus to someone captured on a battle field, and that even so, Justice O’Connor reminded the administration that the President’s powers are never unfettered.

Durbin was terrific, good enough that I want to look up the transcript to get it exactly right. In fact, I think I’ll do that for all the best moments today, in a separate post. Durbin was especially good in reminding Gonzales that Democrats and Republicans were working to give the administration everything they needed, at the time of the original Patriot Act passage; why would the administration hesitate to ask for a change in FISA. He also finally said the words that every Democrat should be saying; what Gonzales has consistently insisted through-out this hearing that is being done under this program, to wit, use electonic surveillance exclusively to track foreign terrorists just isn’t what, as described in the press, appears to be happening, and what the real fear is about is that thousands and thousands of ordinary American citizens are having their communications intercepted, or monitored by an administration that claims an almost absolute power to do so, unfettered, without any sort of oversight, by either of the other two branches of government.

Brownback; why we’re in this war on terrorism; quotes Bin Laden; we’re going to be in this war for decades, the cold war of our generation.

Maybe not, if you guys weren’t such jerks.

We, Democrats, should be attacking this kind of statement, with reason and evidence; isn’t it about time that we started scaring the American people with the prospect that we are going to find ourselves in a hundred years war with a billion Muslims if these jokers get their way.

Senator Leahy; points out congress, including Democrats have updated the FISA statute five times; he notes that the Clinton administration in 2000 used the FISA court 1000 times; Bush used it less than Clinton in 2001. (Yeah, and it showed, didn’t it?) Leahy gets angry, but in a controlled way. He’s been terrific today.

Orin Hatch wants to talk about the leakers and the Times, and the eight members who were briefed on the program, none of whom objected, according to Hatch. Apparently, Hatch doesn’t know Senator Rockefeller exists.

Hatch mentions that power of the congressional purse; why haven’t foes used it? Hatch is such a hack; brings up Jamie Gorelick and the Clinton administration, warrantless physical searches. I hope one of the Democrats corrects the record here. Love the way Hatch refers to Clinton’s years as peacetime; Clinton was fighting these same terrorists; the difference - Republicans refused to understand the danger…right up until 9/11. Hatch goes after Walter Dellinger, as if Dellinger is being a hypocrite, when the two cases are entirely different.

As good as the Democrats have been today, I worry about the fact that this is a complicated, legal argument, and that the press will be too lazy to get it straight, at least the punditocracy, who are the laziest people on the planet. Hatch is stressing how reasonable all this is.

Of course, as Leahy was pointing out, we have no way of knowing how reasonable it is, other than the administration’s reassurance, and Hatch’s.

Yeah, Feinstein takes on the Aldrich Ames case and Jamie Gorelick; Feinstein got Gorelick to put it into writing, which Diane is now reading to the gathered Senators. She also notes that briefings of the big 8 she considers to be a violation of law. Gonzales disagrees, and defers to Chairman Robert’s assurance it is. . Feinstein sticks to her guns. Intersting, Gonzales notes that committee Chairmen are noted for their jealous guarding of prerogative; used to be true, not so for Republicans like Pat Roberts, who serves the President, at the expense of every American citizen.

Feinstein notes those changes to FISA that the committee gave the President; why not come and ask.

Feinstein thinks it’s because the program is much bigger than Gonzales is indicating in this hearing. Well, that’s laying it out there.

Feinstein:”I can only believe this program is much bigger and much broader than you want anyone to know.” Oh dear, Gonzales can’t confirm or deny. Good, Feinstein points out that when those other Presidents were acting during wartime, there wasn’t a specific statute that set out the limits of Presidential power to surveil electronically.

While Grassley chews his cud, let me make some general comments.

Being stuck at my computer, I have no idea how the cable news networks are playing the hearing. Since they already have their narrative, Americans will gladly give up something as inconsequential as their civil liberties, or the whole damn 4th amendment if necessary, in order to feel safe, it may be easy for them to play this hearing as being good for the President.

No matter what the media says, these hearings have laid out lines of attack that have to be followed up by Democrats. This is a winnable argument. Not easily winnable, but winnable.

Gonzales says, “We have a good story to tell, he only wishes he could tell it. Not an accident that we haven’t been hit again. Oh, no, not Nixonian. Gonzales directs our attention to Pat Roberts reply to Howard Dean.

Grassely soft ball to Gonzales; Al Queda isn’t conventional enemy, should we use conventional law enforcement to combat them. Gonzales says this is a real war. Really? Another straw war, maybe.

Feingold is up: goes after President’s claim that he is using the same legal authority as other President’s have used - notes that FISA wasn’t in place for those Presidents.

Federal courts haven’t approved their constitutional argument, according to the President and yet Gonzales can’t give a post FISA court case. Gonzales sounds just like Alito in his inability to deal with a direct question when it implies a criticism of the administration.

Feingold insists that the President in the SOTU was misleading the American people. The American people need to know that you already have the authority under FISA do what you need to do to protect this country. Feingold asks if there are any other programs that might be illegal, minus the assumed authority the President feels he gets from the Authorization of Force? Wow, Gonzales asked to get back in writing.

John Kyl is actually going after Democrats for daring to question the administration. And it’s disgusting. What did the President really mean in the SOTU, he asks. Gonzales says he was only talking about his inherent power, not FISA. Round and round they go. FISA is just a tool to them, not a statute passed by congress which is meant to be the guiding control on their behavior.

Schumer asks if there have been any abuses of the NSA program, any investigations of abuses, any one disciplined for abuses - this goes to the heart of the matter? He gets no where.

Senator Dewine; Group of eight, statutory authorization for this group - receive reports of covert action; he just wants to make this point. Why? The point, Senator Dewine, is that the only reason they told anyone in congress was to cover their asses, and they did so in a way which made it impossible for anyone to do anything to stop them. Oh, Dewine is a strict constructionist..yes, and your point is?

The real mystery I keep coming back to, which many Democrats have asked about again and again, why the hell didn’t they come to congress; why don’t they now?

KNOW WHAT I’M MOST AFRAID OF. NOT THAT THEY ARE DOING SOMETHING WILDLY ILLEGAL ON A VAST SCALE; NO, MY FEAR IS THAT THEY ARE DELIBERATELY BEING MYSTERIOUS IN ORDER TO CREATE AN ISSUE FOR THE FALL ELECTION CYCLE, AND THAT IS WHY THEY AREN’T DOING THE SENSIBLE THING, AND SHARING INFORMATION WITH CONGRESS SUFFICIENT TO MAKE IT ALL LEGAL.

IF THEY ARE FORCED TO REVEAL WHAT THEY ARE DOING, EVEN IN A CLASSIFIED SITUATION, IT’LL TURN OUT IT’S NOT THAT UNUSUAL, OR TOXIC, AND DEMOCRATS AND OTHER CRITICS WILL LOOK LIKE ANXIOUS FOOLS.

DOES ANYONE THINK WE CAN MAKE AN ISSUE OUT OF THE POSSIBILITY THAT THEY ARE PROVOKING A CONSTITUTIONAL CRISES IN ORDER TO HAVE ANOTHER DIVISIVE ISSUE TO WIN AN ELECTION WITH?

I’m going to take a break here. I’ll be back with more.

Please be aware that I’m posting this in a raw form; I will be editing it as I can.