Bare Hooks

The longer it goes on, the more pathetic terrorist surveillance opponents become:

The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush's domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.

The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president's powers in fighting terrorism.

With the committee scheduled to hold the first public hearing on the eavesdropping program on Monday, the Justice Department's stance could provoke another clash between Congress and the executive branch over access to classified internal documents.

Translation: Now that we're hip deep in this sitation of our own design, we find that we don't really have anything to really justify these hearings, so... a little help, please!

As more than one person has predicted, the NSA surveillance case has come into a phase where Democrats in Congress (along with a few Republicans) are determined to re-establish where they think that the borders of presidential authority should lie. Apparently, the evidence amassed so far does not bode well for the self-important legislators of the Senate Judiciary Committee.

They've been reduced to casting about madly, hoping that by dumb luck they might hook something of significance. At the very least, they hope to muddy the waters enough so that they can limp out out of this investigation not perceived as small men and women jealously guarding their fiefdoms.

Regarding the NSA intercept program, the Justice Department issued a 42-page white paper explaining the Administration's legal position in great detail, establishing that the Presidency has always had "inherent constitutional authority" to conduct warrantless investigations of enemy forces to dissuade attacks upon the United States. The document cites case law, the President's inherent Constitutional authority under Article II, an apparent FISA exemption granted by the Authorization for Use of Military Force (AUMF), and certainly not least, the fact that the FISA Court of Review, in In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002), clearly stated:

([A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority...").

It appears that the game was over before it began. The fact that the Senate Judiciary Committee been reduced to such a blatantly weak Hail Mary play reveals just how desperate their hopes for a face-saving gesture have become.

But don't worry, Senators. At least when all this is over you won't face the prospect of Justice Department espionage investigations like your friends at the NY Times.