11: 20 a.m.: As expected, Orrin Hatch has opened with an assertion that the president clearly did nothing wrong, and that he has violated no laws.
"There is no prima facia evidence (that the president has violated the law," says Hatch. This guy should resign and become the new White House counsel.
Pat Leahy challenged the Bush administration and the attorney general for failing to answer the basic questions that could have determined whether good or bad faith was in play in the promulgation of the domestic spying program...
Russ Feingold, up now, just noted an earlier "hit and run" on Mr. Dean, who was called out as having served time because of Watergate. Feingold said, in essence, you know why Mr. Comey and the other members of the Justice Department aren't sitting on the panel, as Mr. Fein is, comes down to two words: "cover up."
Paraphrasing Feingold: "for me the lawbreaking is bad enough in itself, but the defiance of the administration in refusing to answer the questions is an aggravating factor. Call it bad faith, call it what you want. If you want "bad faith" added to the resultuion then fine..."
The essential point made by Mr. Fein is that the president "would have celebrating leaving office and never having this program exposed." He "intended to keep it secret forever," and the prospect of having such expansive powers go on indefinitely, in this unending "war on terror," is an invitation to abuse. Added to the point made by Mr. Dean: that there is, in fact, a prima facia case that the president went around the FISA statute, means that Congress certainly has the right, and in fact the duty, to assert itself to condemn this blatant lawbreaking. "If it were unique and isolated, I might feel differently," said Dean, "but I think it's a pattern and practice..."
Hatch is back to insisting that the president did inform Congress, by informing the "Gang of eight." Mr. Fein is responding now...
11:23 a.m.: Fein, responding to Specter's repeated assertion that the program, because it was discussed with eight members of Congress, "was not secret, and I don't understand why you insist on saying it is secret," delivered a broadside (paraphrased):
"I understand that I am not a member of Congress and thus cannot be definitive (on the matter of disclosure). I am a citizen of the United States and interested in living in a republic and not a monarchy, and thus am interested in having this body carry out the checks and balances that it has the authority to under the Constitution, whether or not this body wishes to undertake that charge."
I think Arlen just got offended.
11:27 a.m.: Robert Turner just made a stunning assertion: that if the president decides he needs to act immediately on a security threat, but the Congress demands oversight over that authority, then the members of Congress do not really have the security interests of the United States at heart, but rather are simply "concerned about the next election." Turner's whole thesis is that if the president says he's only targeting al-Qaida suspects, then he is to be given the benefit of the doubt. But on what basis does Turner assert this? He, and we, have only the rpesident's and the attorney general's word to go on. That may be good enough for Republican partisans, but it shouldn't be good enough for the majority of the American people.
11:30 a.m.: Lindsey Graham is now interrogating John Dean about Watergate... this is cheap, political theater of the lowest form. And he threw in yet another cheap shot about "that's why you went to jail." (actually, Dean didn't go to jail, and he was the chief witness against his boss, President Nixon, something for which Americans can be grateful, as opposed to burglar G. Gordon Liddy, who is unapolagetic. See here.) Leahy just tried to intervene, but Specter is allowing the Republicans on the panel to make this hearing a roast of John Dean, rather than a full airing of the facts. Magically, the Republican Senators who were once skeptical of Bush's wiretapping program, like Graham and Specter, are making it their mission -- Pat Roberts style -- to protect the president by destroying his critics on the stand. Mr. Fein and Mr. Dean are becoming the targets of what looks to me like a committee hit job. Shameless.
Dean is trying to school Graham on the history of Watergate. Graham needs to take a history book out of the Congressional library. Here you are, Lindsey, dear.
11:54 a.m.: Russ Feingold just made the point that even if Congress were to pass a law correcting Bush's FISA-spying problem, "Dick Cheney would probably be in the back room drafting a signing statement invaliting the law."
Fein put forward a simple syllogism (my favorite Lou Dobbs word, btw)
(paraphrased) "The president's argument is that he has the inherent constitutuional authorty, uncontrollable by Congress, to gather intelligence. One way to gather intelligence is by domestic spying. Another way is by breaking into homes. Another way is by opening our mail. Another way to gather that is by torture. That is the logical conclusion of this argument, and when asked aobut it they haven't denied it. They've just said we haven't gotten there yet."
In other words, under the new "unitary executve," there are no powers of the president during wartime -- even if the war never ends -- that the Congress has the power to limit. And the president can extend the "tactical" use of surveillance almost indefinitely, and to every quarter of our lives. If the Congress lets this stand, how could they argue that the president doesn't have the power to
Noon: Graham is back from the potty and sliming Dean again. He says there "hasn't been an honest debate" whether the president can lie under oath or break into an opponent's headquarters (when in a corner, swing at Clinton, then slime Dean with Nixon again). Then he magically asserts that ... gasp! ... the inherent authority of the president does have limits (though I'm not sure what Graham thinks they are.) Then he defends the president again. Thanks for nothing, Senator.
Are there any checks on the president's wartime powers? Turner says the power exists to check such things as torture under Article I, and to create the Uniform Code of Military Justice (he earlier said the Congress that passed FISA, which he thinks artificially limited the president's power, should have been censured). Other than that, Turner thinks the president can do as he wishes, in secret.
Specter is now asking the panel about the DeWine et. al. compromise legislation. BTW, DeWine and several Republican members of the committe are no-shows to this hearing.
Update: Here's AP's writeup of the hearings so far.
Update: Blogger (and First Amendment lawyer) Glenn Greenwald got a shout out in the Senate hearing for this post today:
While we know that the eavesdropping ordered by President Bush is exactly the eavesdropping which FISA makes it a criminal offense to engage in, we do not yet know -- thanks to the frenzied efforts of Bush defenders to suppress any and all investigations into the Administration's eavesdropping activities -- the nature and extent of Bush's warrantless eavesdropping program. We do not, for instance, know which Americans were eavesdropped on, how many Americans were subject to this illegal surveillance, how it was determined who would be eavesdropped on, what was done with the information, whether purely innocent Americans had their communications intercepted without judicial approval, etc.
The White House has repeatedly assured us that there is no reason for us to know any of this, and there is nothing for us to worry about, because they are eavesdropping only -- to use a The White House's formulation -- on the "very bad people."
In that regard, John Dean is an excellent witness for the hearings today, since he was part of an Administration which invoked exactly the same rationale. According to this July 25, 1969 article from Time Magazine, which was reporting on public fears over new surveillance powers given to the Administration by the Congress, Nixon's Attorney General John Mitchell told Americans they had nothing to worry about:
During his presidential campaign, Richard Nixon said that he would take full advantage of the new law-a promise that raised fears of a massive invasion of privacy. To calm those fears, the Administration last week issued what amounted to an official statement on the subject.
In his first news conference since becoming the President's chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. "Any citizen of this United States who is not involved in some illegal activity," he added, "has nothing to fear whatsoever."
Yep. Nothing to fear...
File it under "whatever": Lindsey Graham, at the close of round one of the hearing, apologized "if he's been rude to any of the witnesses." "This is an emotional issue," said Graham. Whatever, man.
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"[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.' Alexander Hamilton, Federalist No. 84, August, 1788
