Watching the Detectives

Think Progress has this nice flashback to Alberto Gonzales' confirmation hearings just a little under a year ago:

During his confirmation hearings for Attorney General in January 2005, Sen. Russ Feingold asked Gonzales about this precise issue:

SEN. FEINGOLD: I — Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he — does he have that power?

After trying to dodge the question for a time, Gonzales issued this denial:

MR. GONZALES: Senator, this president is not — I — it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.

In fact, that was precisely the policy of the President.

And the WaPo takes on the administration in its lead editorial this morning:

But there is a reason the CIA and the NSA are not supposed to operate domestically: The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA [Foreign Intelligence Surveillance Act] exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents. Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer -- and apparently on a large scale -- is gravely dangerous.

Why the administration even deems it necessary remains opaque. Mr. Bush said yesterday said that the program helped address the problem of "terrorists inside the United States . . . communicating with terrorists abroad." Intelligence officials, the Times reported, grew concerned that going to the FISA court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures -- and their computers and files -- were captured. But FISA has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA -- rather than the FBI, the intelligence component responsible for domestic matters -- be doing whatever domestic surveillance needs be done?

[...]

Does the administration now claim that warrantless surveillance of hundreds of people by an agency generally barred from domestic spying is consistent with FISA? Does it claim that the congressional authorization to use military force against al Qaeda somehow unties the president's hands? Other than claiming it has done nothing illegal, the administration is not saying.

Congress must make the administration explain itself. In the aftermath of the revelations, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said hearings on the matter would be a high priority in the coming year. That's good. It should be unthinkable for Congress to acquiesce to such a fundamental change in the law of domestic surveillance, particularly without a substantive account of what the administration is doing and why.

Which brings us back to another post at Think Progress, which points out--with this exchange between Bill Kristol and Juan Williams on FoxNews--that the Right doesn't have a leg to stand on in this debate:

BILL KRISTOL: I wish Bill Clinton had done this. I wish we had tapped the phones of people that Mohammed Atta, that Mohammed Atta here into the United States, if we discovered phone calls from Afghanistan to him. That’s why 9/11 happened. That’s what connecting the dots is.

JAUN WILLIAMS: If you’re going after the terrorists so would a FISA court support it, just as you support it.