Gonzales and NSA Wiretaps

WaPo article is pretty poor. Doesn't go into the testimony as much as reports the Senatorial griping.

Specter suggested that the program's legality be reviewed by a special federal court.

"There are a lot of people who think you're wrong. What do you have to lose if you're right?" Specter asked Gonzales.

Hmm. Let's see. Political gerrymandering and screams for impeachment? I'd say that is something to lose. I don't see how this isn't going to end up in court. That said, these hearings are pretty much a joke. Speaking of which, here's another of the clowns.

Sen. Patrick Leahy of Vermont, the panel's senior Democrat, said that while al-Qaida terrorists should be monitored, Bush chose to illegally wiretap Americans' conversations without safeguards to protect civil liberties.

"My concern is for peaceful Quakers who are being spied upon, and other law-abiding Americans and babies and nuns who are placed on terrorist watch lists," Leahy said.

Proof Senator? Please name the Quaker, Nun, or Baby that is being spied upon. The topic today was NSA spying, not the TSA no fly lists.

Gonzales told the panel that in authorizing the program, conducted by the National Security Agency, "The president is acting with authority both by the Constitution and by statute."

Gonzales called the electronic eavesdropping program "reasonable" and "lawful." He said published criticism of the program was often "misinformed, confused or wrong."

and

"There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing," Gonzales said.

"You're not answering my question," Leahy retorted. "Does this law authorize the opening of first class mail of U.S. citizens? Yes or no."

"That's not what's going on," Gonzales said. "We are only focusing on international communications, where one part of the conversation is al-Qaida."

Well, that was clear. But did Leahy hear the answer? And if he did, does it matter?

And now on to the head clown.

Sen. Edward M. Kennedy, D-Mass., told Gonzales the administration broke with the time-honored system of checks and balances by not seeking greater congressional cooperation.

Kennedy said the eavesdropping program could actually weaken national security, raising the prospect that terror suspects could go free if courts rule evidence collected from such surveillance to be tainted.

"We're taking a risk with national security which I think is unwise," Kennedy said.

"We don't believe prosecutions are going to be jeopardized because of this program," Gonzales told Kennedy.

Sad as it is, he has a slight point here. Though I will say that prosecutions aren't likely to be a worry for those who are killed if a terrorist action comes to fruition. We should have concern for those people inside the US who are conspiring with terrorist, and with any luck the President and the law-enforcement institutions are getting the warrants when they are needed for prosecutions. The likelihood of our actually hearing about those cases is probably quite low though.

Gonzales declined to discuss details of the operation, as skeptics of the program have demanded. "An open discussion of the operational details of this program would put the lives of Americans at risk," he said.

Not really surprising. Though I wonder how much impact the revelations of the NSA program have impacted it's effectiveness. I'm going to guess that it has taken a substantial hit.

The Volokh Conspiracy gave me a headache when I read this.

Precedents on Inherent Authority: I've been watching parts of the Gonzales hearings this morning, and find it a bit frustrating that Gonzales seems to me mixing up two different kinds of claims concerning "inherent authority" to conduct surveillance. The first kind of inherent authority is inherent in the sense that Congress does not need to create it for it to exist; the power exists even before Congress grants it. The second kind of inherent authority is inherent in the sense that Congress cannot extinguish it; the power exists even after Congress tries to take it away. It is true that there are a number of past precedents on the first type of inherent authority, but there is very little on the second type. My understanding is that Gonzales is using "inherent authority" in the second sense, but I don't think it's particularly helpful to cite precedents on the first type of inherent authority to support a claim of the second type of inherent authority.

I suppose there is a difference, but it really sounds like hair splitting. Not being a lawyer, I guess I'll just take Orin Kerr's word on his statement.