The Judicial Hearings: Oversight or Blind Obedience?

The Democrats appeared to be getting steamrolled in the morning session of yesterday's Senate Judicial Committee hearing, but with some help from a member of the other party, they came back strong in the second half.

Attorney General Alberto Gonzales, yesterday's only witness, came out swinging in the early rounds, heavily relying on the argument that the Constitution and the September 2001 Authorization for Use of Military Force (AUMF) give Mr. Bush authority to conduct warrantless surveillance of Americans, and that the program did not violate the Federal Intelligence Surveillance Act (FISA), and that the Supreme Court decision in Hamdi v. Rumsfeld confirmed that the AUMF had granted sweeping powers to the President.

Throughout the morning, the most blatantly partisan Republican members of the Committee bolstered Gonzales' position. John Cornyn (Texas), Orrin Hatch (Utah), Chuck Grassley (R-Iowa), Jon Kyl (Arizona), and Jeff Sessions (Alabama) who are little more than administration altar boys, fed Gonzales straight line after straight line. Sessions' staged political event in the hallway during a break was particularly heinous. He paraded out the spouse of one of the airline pilots killed on 9-11 who expressed her support of the NSA domestic spying program. Of course, that's just the sort of thing one should have expected of Sessions. He spent last Sunday on the political talk shows stating the domestic program was legal.

As the session broke for lunch, it appeared as though the Democratic members of the Committee had come into the hearing with no game plan whatsoever. But over lunch, in the hallway outside the hearing chamber, the senior Democrats played two important videotapes. One demonstrating that President Bush had lied in a 2004 speech where he claimed that all wiretaps of Americans were being approved by court order, and another showing that Gonzales had lied when he said the same thing during his own confirmation hearings in December of last year.

Committee chairman Arlen Specter (R-Pennsylvania) had disallowed the playing of these tapes in the hearing. Specter also refused to require Gonzales to take an oath before testifying to the committee over the objections of several Democrats. The issue came to a vote in which the Republican majority on the committee upheld Specter's decision.

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After the lunch break, key Democrats, almost as if they'd planned it that way, rolled out their big guns, and by my scorecard emerged dominant by the end of the session. Some highlights:

-- Pat Leahy (Vermont) asked Gonzales when exactly did the administration determine that the AUMF authorized Mr. Bush to wiretap Americans without warrants. Gonzales's memory began to fail him. Leahy asked point blank whether, in fact, the administration had decided to go ahead with the program before the AUMF was passed. Gonzales evaded answering this yes/no question, leaving little doubt what the true answer was.

-- Russ Feingold (Wisconsin) noted that Karl Rove has accused the Democrats having a pre-9/11 mindset, and retorted that Republicans have a pre-1776 mindset. Feingold pushed the question of whether Gonzales had known of the warrantless spying program when he denied it at his confirmation hearing. Gonzales tried to escape answering by wading into his catch-all evasion about "hypotheticals." Feingold called him on it, and remarked that Gonzales had "taken mincing words to a new high."

One certainly couldn't accuse Feingold of mincing words. He stated up front that he believed the administration had broken the law and lied about it.

-- Chuck Schumer (New York) made a point of asking Gonzales if he'd mind the committee calling in former Department of Justice attorneys John Ashcroft, James Comey, and Jack Goldsmith to testify before the Judiciary Committee. Ashcroft, Comey, and Goldsmith had all, at one time or other, expressed concerns about the legality of a number of administration programs. Schumer's obvious message to Gonzales was "are we going to catch you in more lies?"

Chairman Specter told Schumer that if the hearing was a court trial, he would have had Schumer's remarks stricken from the record.

Schumer politely told Specter to pack sand.

Schumer asked Gonzales if any American's home or office has been physically searched without court approval under the "terrorist surveillance program." Gonzales dodged the question, but Schumer wouldn't give up. Gonzales finally said, "I'm not saying I won't will not answer. I'm just saying I will not answer you at this time."

-- Dick Durbin (Illinois) told Gonzales that the FISA law is not meant to be the "useful tool" that the administration claims it is. On the contrary, he said, it's meant to be a check on executive powers.

Durbin bemoaned Specter's decree that the tape of Gonzales' confirmation hearing testimony, then read the pertinent sections of the transcript in which Gonzales denied the administration was conducting warrantless surveillance on Americans.

In a somewhat heated exchange on the AUMF, Durbin asserted that it contained no language whatsoever regarding warrantless surveillance.

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I'm never sure what to think about Lindsey Graham (R-South Carolina). One second, he'll look and act like the "independent" Republican his public relations machine hypes him to be. The next, he'll give every indication that he's just another Jeff Sessions class Bush administration pooper smoocher. Yesterday, he seemed to be more of the former than the latter.

Though he did make a point of telling Gonzales he wasn't interested in finding anybody in the executive branch guilty of any crimes, he also said that he completely dismissed Gonzales' arguments of "uncheckable" presidential powers based on the Constitution or the AUMF.

A former military Judge Advocate General officer, Graham succinctly outlined the delineation of control over the military as defined in the Constitution. While the document designates the President as commander in chief, it expressly gives power to establish laws that regulate the military to the Congress.

The overarching rule of law Congress has established for conduct of the military is the Uniform Code of Military Justice (UCMJ).

If the UCMJ tells a soldier to do one thing, Graham asked, specifically referring to treatment of prisoners, and the commander in chief tells the soldier to do something that the UCMJ prohibits, how is the poor soldier to decide whether the commander in chief's order is a legal one that the soldier is bound by oath to obey?

(That Graham framed this question in terms of treatment of prisoners doesn't surprise me. I suspect that the old military lawyer is secretly furious over the scapegoating of junior personnel for prisoner torture that was dictated by the highest levels of command.)

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Republican Senate Judiciary Chairman Arlen Specter is the boulder in the middle of the stream of the war powers hearings. Like Graham, Specter likes to play the "independent Republican" game, but he gives one sufficient reason to wonder if he isn't just really another lap dog in the Bush era GOP kennel.

That he stood his ground on the matter of Gonzales not being sworn in, that he disallowed the tapes of Bush and Gonzales lying about the wiretapping program during the formal hearings, and that he tried to censure Chuck Schumer for asking probing questions of Gonzales is reason to believe that he's on the submissive end of a short leash that connects to Dick Cheney and the rest of the Bush political machine.

Insight reports that the Rovewellians are threatening to break the kneecaps of any Republican on the Judiciary Committee who doesn't fall into the company line.

The White House has been twisting arms to ensure that no Republican member votes against President Bush in the Senate Judiciary Committee’s investigation of the administration's unauthorized wiretapping.

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

"It's hardball all the way," a senior GOP congressional aide said.

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Over the last few weeks, Mr. Rove has been calling in virtually every Republican on the Senate committee as well as the leadership in Congress. The sources said Mr. Rove's message has been that a vote against Mr. Bush would destroy GOP prospects in congressional elections.

We're well advised to view this report from the perspective that Insight is a conspicuously left leaning journal. But what it says sounds consistent with the mafia-like strong-arm tactics we've seen the administration practice in the past.

And if Arlen Specter blocks attempts by Judiciary Committee Democrats to subpoena administration documents and witnesses, and continues to insist that witnesses don't need to be sworn in before the committee, we'll have a clear idea of the nature of Specter's character lies, and of what the true nature of the Senate hearings on war powers really are.

Another GOP orchestrated sham.