What The Hearings Meant

Like I said, I thought the Senators on the Judiciary Committee did a great job drilling down to the heart of the argument in Attorney General Alberto VO5's testimony yesterday. Unchecked executive power is dangerous. It's as simple as that. Congress never granted this authority, no matter what VO5 says about the Authorization to Use Military Force from 2001. To quote Arlen Specter, that defies logic and plain English. And Lindsay Graham makes the case on the "inherent authority" front:

All I’m saying is the inherent authority argument in its application to me seems to have no boundaries when it comes to executive decisions in a time of war, it deals the Congress and courts out, Mr. Attorney General.

And of course, this is a perpetual war for perpetual peace. So what we're really being asked to do is to rewrite the Constitution by proxy, to give up on the separation of powers and the notion of co-equal branches of government.

Other Presidents have not done this before. This is a radical reinterpretation of the laws of the United States. The potential for abuse is not only great, it's doubtlessly already happening:

BIDEN: Can you assure us, General, you are fully, totally informed and confident that you know the absolute detail with which this program is being conducted? Can you assure us you personally can assure us no one is being eavesdropped upon in the United States other than — other than someone who has a communication that is emanating from foreign soil by a suspected terrorist, al Qaeda, or otherwise?

GONZALES: Sir, I can’t give you absolute assurance.

BIDEN: Who can?

GONZALES: Certainly General Hayden knows more about the operational details of this [program]. What I can give the American people assurance is that we have a number of safeguards in place so that we can say with a high degree of confidence or certainly certainty that what the president has authorized in connection with this program, that those procedures are being followed.

Hey, we're trying! Later Sen. Kohl asked what is done with the records of calls from Americans swept up in the program who are later found innocent, and VO5 was noncommittal about whether or not those records are kept.

This is not only a program with potential for abuse that sets a dangerous precedent about expanding executive power. It's also a waste of money and resources, apparently:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

Clearly, a program this massive, where the NSA is checking literally millions of calls in emails in a huge data mining operation (read the article for details), is costing lots of money and man-hours spent tracking down leads. These are apparently going almost nowhere. That time and money could be better spent on results-oriented enforcement, or simply by protecting borders, ports and shipping containers.

It remains to be seen whether Republicans on this committee will abdicate their position as elected officials of government and give in to the executive. This is still a Constitutional crisis until a decision is made on this by the natural arbitrator, the Supreme Court. We could stop all of this simply by the White House agreeing to get a warrant and play under the FISA rules, or by going to Congress asking specifically to grant this authority. Or we can wait until this authority is wrested away by the Congress or the courts. I hoped for the former, seeing no need to drag the country through this crisis needlessly. That particular Texan stubbornness made sure that wouldn't happen.

The President is breaking the law and now we have to find out why. If he came clean and changed the process early on we wouldn't have to dig this deep. Now it's imperative that we uncover what's really going on here. The Senate needs to take the lead in that process of discovery.