A Stitch in Haste

On Monday, Attorney General Alberto Gonzales appears before the Senate Judiciary Committee to explain and defend the National Security Agency's "terror surveillance program," a/k/a the warrantless wiretap scandal.

Here is a rundown of recent events regarding the program:

--One topic likely to be a focus during Gonzales' testimony will be his previous testimony in his confirmation hearings. Senator Russ Feingold has reminded us that, back in January 2005, then White House Counsel Gonzales assured the Senate that eavesdropping on communications where one party was an American in America was a "hypothetical situation." Yet he knew at that time that the NSA program was already in place. Some are going so far as to accuse Gonzales of bona fide perjury. I've been reluctant to toss around the p-word ever since the pervert president's "the meaning of is" shenanigans. Still, Gonzales has quite a hook to try to wiggle off. Stay tuned.

--Still on the subject of those pending hearings, the Justice Department has declined to provide the Senate Judiciary Committee internal memos on how they determined that the program is somehow constitutional. The Administration insists that the memos "add little to the public debate." Not that they are classified, not that they are privileged, but that they are "redundant." Of course, the Senate might disagree. Perhaps that's the problem. Balkinization has much more.

--One of the reasons the Justice Department claims those internal memos are redundant is because the legal arguments they contain are already in the so-called "white paper," the 42-page presentation of the Administration's rationale for the constitutionality and legality of the warrantless wiretap program. Well, 14 legal scholars and former government officials have penned a 12-page response to the white paper. Their conclusion:

To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Ouch. Bottom line: The White House may well be right about the legality of the program (I think not). But they are certainly not right when they say it's "clear." It's about as clear as mud.

--On the other hand, the Justice Department has at least one ally in the Senate, and he can write letters too: Intelligence Committee Chairman Pat Roberts has issued a 19-page letter (PDF) declaring his conclusion that the warrantless wiretap program is indeed constitutional and legal. Of course, it is not entirely clear why Roberts' opinion matters. The Intelligence Committee is about the operation of our intelligence apparatus, not the legality of it. Those questions belong in the Judiciary Committee, not the Intelligence Committee. And the chairman of that committee, Arlen Specter, strongly disagrees with Roberts and Gonzales. Go figure. Balkinization has more.

--In any event, it appears that the courts may resolve the issue sooner rather than later: A man who pleaded guilty of conspiring to blow up the Brooklyn Bridge is suing to learn whether any evidence used against him was obtained via the warrantless wiretap program. If so, and if the program is deemed a violation of the constitution or statute, then his guilty plea could be in jeopardy. Stay tuned.

--Finally, if this terrorist conspirator was indeed caught via the warrantless wiretap program, then he would certainly be the exception. Contrary to the histrionics by President Bush and other apologists that the program is "vital" or "essential" or "critical," in fact all but a puny handful of the intercepted conversations yield any useful results at all. Go figure.