Get Out of the Weeds.

After the President, who a day earlier said he wouldn't discuss an ongoing investigative operation, came out yesterday and said "Yeah, we're spying on Americans without a warrant, and what are you going to do about it," the conservative noise machine leapt to his defense. Dana Rohrabacher, proving he's not just a terrible screenwriter but a terrible Congressman too, claimed that "We should be grateful" that the President is doing this because otherwise we'd all be dead, I guess. He specifically cited this Iyman Farris plot to "blow up" the Brooklyn Bridge, which was actually a plot to dismantle the Brooklyn bridge with blow torches. I guess the NYPD wouldn't have noticed that seven-year project. Bob Barr debated Rohrabacher on CNN and tossed out some gems:

BARR: Here again, this is absolutely a bizarre conversation where you have a member of Congress saying that it's okay for the president of the United States to ignore U.S. law, to ignore the Constitution, simply because we are in an undeclared war.

The fact of the matter is the law prohibits -- specifically prohibits -- what apparently was done in this case, and for a member of Congress to say, oh, that doesn't matter, I'm proud that the president violated the law is absolutely astounding, Wolf.

BARR: Well, gee, I guess then the president should be able to ignore whatever provision in the Constitution as long as there's something after the fact that justifies it.

And that's the thing. People are looking at this in the completely wrong way. They're trying to re-interpret the statute (The Foreign Intelligence Surveillance Act, or FISA) which authorizes that wiretapping and covert searches on US citizens must be done with a warrant, by claiming that the statute does allow warrantless searches (which is simply an act of purposeful misquoting.). They're giving excuses like "the FISA court takes too long to get a warrant, and you need flexibility in anti-terror situations," even though the FISA court is built for speed, almost never turns down a request, and allows the NSA to even go 72 hours without a warrant before they mandate one. They're calling to prosecute whoever leaked the revelation in the first place to the New York Times, saying they violated national security, even though it was public knowledge that the government could get a warrant and do the same exact thing, and can even still do so now, which means none of this spying even has to stop, just the manner about which the government enacts it.

But none of this is important. People need to get out of the weeds. At issue here is the President allowing himself to break the law by overriding a federal statute, which the Constitution forbids. As Richard Nixon said, "when the President does it, that means it's not illegal." That's what's at stake here.

Russ Feingold knows exactly what's at stake:

Sen. Russ Feingold, D-Wisc., believes President Bush is acting more like a sovereign monarch than an elected leader by authorizing the National Security Agency to listen in on Americans' phone calls.

"We have a system of law," Feingold said. "He just can't make up the law … It would turn George Bush not into President George Bush, but King George Bush." [...]

Feingold, the only senator who initially opposed the Patriot Act, which was designed to protect Americans from terrorism, said that the spying is indicative of a "pattern of abuse" including torture and secret prisons. The president, Feingold said is "grabbing too much power."

It's very, very simple. Feingold is not on the Senate Intelligence Committee (actually, he'll be on it come January; he's replacing Jon Corzine), and maybe his presence there will wake up that group into realizing that the words "national security" do not supersede the Constitution. According to the President "Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it." Intelligence Committee ranking Democrat Jay Rockefeller was mentioned in the initial New York Times article. But Bob Graham tells it differently:

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA's new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

In describing the briefings, administration officials made clear that Cheney was announcing a decision, not asking permission from Congress. How much the legislators learned is in dispute.

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.

"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."

Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."

The high-ranking intelligence official, who spoke with White House permission but said he was not authorized to be identified by name, said Graham is "misremembering the briefings," which in fact were "very, very comprehensive." The official declined to describe any of the substance of the meetings, but said they were intended "to make sure the Hill knows this program in its entirety, in order to never, ever be faced with the circumstance that someone says, 'I was briefed on this but I had no idea that -- ' and you can fill in the rest."

By Graham's account, the official said, "it appears that we held a briefing to say that nothing is different . . . . Why would we have a meeting in the vice president's office to talk about a change and then tell the members of Congress there is no change?"

House Minority Leader Nancy Pelosi (Calif.), who was also present as then ranking Democrat of the House intelligence panel, said in a statement yesterday evening that the briefing described "President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities." She said she "expressed my strong concerns" but did not elaborate.

I think whether Graham and Pelosi did or did not object is not germane. The article makes it clear that this was not "can we do this" but "we're going to do this." And Graham's account makes it seem like a bait and switch. But again, that's not the issue. Just as there is no such thing as Presidential infallibility, Congress can get it wrong as well. And clearly, those congressmen briefed on this policy either failed to understand the scope of the change or failed to speak out for reasons of national security or whatever.

We are a country of laws, not men. This entire flare-up is based on a legal opinion devised within the White House (by John Yoo and others) that the President is not a man, at least not a man subject to laws.

No president before Bush mounted a frontal challenge to Congress's authority to limit espionage against Americans. In a Sept. 25, 2002, brief signed by then-Attorney General John D. Ashcroft, the Justice Department asserted "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

That is simply not the case. It relies on the least "originalist" reading of the Constitution in memory, and it demands throwing out the 4th Amendment (or what the hell, the entire Bill of Rights). It is not alarmist to say that this is nothing so much as a full-blown Constitutional crisis.

UPDATE: This sums it up:
"If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator." Actual quote by the president in 2000, the video is at the link. In other words, "Reading and understanding and following all these laws and statutes is hard work. Just doing whatever the fuck I want is so much more efficient!"