IMUS = Integrated Manure Utilization System

Last night, I ran across this article from June 2005 by accident. From all appearances, it seems to be a serious science piece, but if you didn't know any better…

The Integrated Manure Utilization System, or IMUS, combines anaerobic digestion, biogas utilization, liquid/solid separation, nutrient recovery and enrichment processes. Methane gas produced through anaerobic digestion is used to generate green power and heat. Innovative, highly efficient processes recover and concentrate nutrients from the digested liquid to produce pathogen-free bio-based fertilizers. Water recovered from this process is used for irrigation purposes.

This sounds like something Diedre would approve of.

Come to think of it, it sounds like something she puts up with on a daily basis.

Military Time

I'm not much of one to tell prepared jokes, but this one, sent to me by an old Navy buddy, isn't half bad. It has to do with military time, which as you may already know, is based on a 24 hour clock.

Anyway, this crusty Navy chief petty officer walks into a bar, sits at a table, and orders a shot and a beer.

The comely bar maid says, "Hey, Chief you're one hunk of a man. When's the last time you had a little action with a cute honey like me?"

The chief leans back in his seat and says "Not since 1955."

"1955?" the bar maid says. "That's a long time for a healthy guy like you to go without sex."

The chief looks at his watch and says, "You think so? It's only 2130 now."

Top Ten War Power Myths

The Senate Judiciary Committee hearings on war powers have brought to light a number of less than wholly accurate assertions and assumptions about wartime authorities. Here are ten of my favorites.

1. The Foreign Intelligence Surveillance Act (FISA) does not apply in wartime.

FISA specifically addresses wartime considerations:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

2. The President has sole constitutional authority to conduct foreign policy.

Article II of the Constitution gives the President power to make treaties, but they must be approved by two thirds of the Senate. Article I says that all bills for raising revenue--which would include appropriations for foreign aid--must originate in the House of Representatives.

3. The Bill of Rights becomes void in time of war.

Article I gives Congress the power to suspend the writ of the privilege of habeas corpus "when in cases of rebellion or invasion the public safety may require it." This is the only mention in the Constitution of infringement of a civil liberty in wartime.

Bush supporters have claimed this power also applies to the President, citing Lincoln's suspension of the habeas writ to several war protesters during the Civil War. They neglect, however, to mention the case of ex parte Merriman, in which then Chief Justice Roger Taney ruled that Congress alone had the constitutional authority to suspend the writ.

4. The War Powers Resolution of 1973 unconstitutionally limits the President's ability to wage war.

This is one of Vice President Cheney's favorite mantras, and like so much of what Dick Cheney says, it's almost entirely delusional. A better argument says that the Resolution is unconstitutional because it gives a President too much power.

In a nutshell, the Resolution limits the time that a President may commit forces to combat to a maximum of 90 days without specific statutory authorization or a declaration of war from Congress.

The Constitution itself grants the President no authorities whatsoever to send troops into combat without Congressional approval.

5. In the case of Hamdi v. Rumsfeld, the Supreme Court upheld the President's right to spy on Americans without court orders.

Attorney General Alberto Gonzales made this assertion several times during the recent Senate Judicial Committee hearing. But as Senator Russ Feingold (D-Wisconsin) and others correctly pointed out, the Court's written decision said nothing about spying or electronic surveillance.

6. The President has the authority to ignore international treaties like the Geneva Convention and the United Nations Convention on Torture because they are not part of United States Law.

From Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land [.] (Italics added.)

7. It is the job of the Attorney General and other key administration attorneys to determine the scope of the President's constitutional authorities.

To listen to Alberto Gonzales and other administration supporters, you'd think the President can legally do anything he wants on the say so of his own lawyers. But the Constitution doesn't grant any authorities to the Attorney General or the Justice Department. It doesn't even mention them.

Article III vests the judicial power of the United States in "one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

It may seem condescending to point out that Alberto Gonzales and other administration attorneys work for the executive branch, and are not part of the judiciary. However, a college-educated acquaintance of mine who professes to be knowledgeable in political matters recently expressed the opinion that Attorney General Gonzales was Chief Justice of the D.C. Circuit Court of Appeals.

8. "In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”

This often quoted statement is from a memorandum written by John Yoo, an attorney who worked in the Justice Department during George W. Bush's first term. It implies that the Constitution grants the President absolute powers to conduct war, but in fact, the Constitution assigns most war powers to the legislature.

Article II makes the President commander in chief of the military. Specific war making powers are delineated in Article I, which grants Congress the powers…

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress[.]

9. The Constitution expands the President's authorities as commander in chief in wartime.

The Constitution makes the President commander in chief of the military, not of the country, in peacetime and wartime. It makes no provision for the President to assume any of the legislature's powers in time of war, and gives him no wartime authorities to ignore the rulings of the Supreme Court.

10. As Vice President, Dick Cheney is second-in-command of the military, and has authority to direct the Joint Chiefs of Staff in the conduct of the War on Terror.

Article I makes the Vice President the President of the Senate, but he cannot vote on any legislation unless the Senate is equally divided. The Vice President has no legal position in the military chain of command, and the Constitution doesn't allow the President to give him one.

The Goldwater-Nichols Department of Defense Reorganization Act of 1986 redefined the chain of command for U.S. military operations as passing from the President to the Secretary of Defense to the unified combat commanders like General John Abizaid of Central Command, whose area of responsibility includes the Iraq theater of operations.

Goldwater-Nichols relegated the Joint Chiefs of Staff to an advisory role. Hence, Chairman Peter Pace and service chiefs like Army General Peter J. Schoomaker have no actual command authority over the operations in Iraq, Afghanistan, and elsewhere.

#

Countless statements concerning war powers have appeared in legislation and court decisions since the U.S. Constitution was ratified in 1787. Lawyers, pundits, and politicians endlessly refer to these precedents when arguing for or against their point of view, but citing precedent is like taking a stroll through a cherry orchard. You can pick as much of whatever flavor suits your taste.

The Hamdi v. Rumsfeld decision in itself is a cornucopia of contradictory judgments. The majority opinion, written by Sandra Day O'Connor, decrees that…

The AUMF [the Authorization for Use of Military Force passed by Congress in 2001 shortly after the 9/11 attacks] authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.
…

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

But it also says that…

…a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

And as we saw during Attorney General Gonzales' testimony to the Senate Judiciary Committee on Monday, both of these passages were quoted during the for-and-against debate over presidential wartime authority.

How is a concerned American citizen to sort the wheat from the chaff in the ongoing war powers controversy? At the end of the day, it's probably best to keep in mind that all U.S. law springs from the Constitution, and the best way to know what the Constitution says is to read it for yourself. Don't rely on someone else to tell you what it says, and certainly don't rely on anyone who's in the Bush administration or one of its supporters to tell you what it says.

Believe it or not, those folks have been known to make stuff up!

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.

#

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.

#

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.)

#

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.

[…]

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.

Day One, Winding Down

Lindsey Graham (R-South Carolina) is back, taking up the "inherent authority" argument again and talking about Fifth Column movements. He makes a lot of coherent sounding civil libertarian arguments regarding citizens being unfairly branded as being sympathetic to the enemy.

Berto makes the basic John Yoo argument: Congress's basic check on executive authority lies in the power of the purse.

Graham asks if Congress can tell the military it can't abuse prisoners of war.

Gonzales says he doesn't exactly agree, and Graham jumps on him for it.

By golly. Graham, the former military JAG officer, is giving Gonzales a basic schooling on military law, and Gonzales has his tail between his legs.

#

Dick Durbin (D-Illinois) makes the point that the executive branch is using its own lawyers to make legal decisions on its actions and describing that as practicing "checks and balances."

Hooray! They're getting to the heart of the matter.

As Durbin is saying, when the executive branch is monitoring itself, there are no checks or balances.

Berto's pulling a number about classified information.

Durbin's not letting him off the hook.

And Durbin, at the end of his time, enters testimony from 9/11 victim family members that refutes the propaganda Jeff Sessions has been pushing on C-Span all day.

#

John Cornyn (R-Texas) now, trying to say government whistle-blowers are protected, when in fact we've all seen that they aren't.

We've gotten a pretty good picture today of who the good guys and bad guys are. Cornyn has decisively placed himself in the latter camp.

#

Cornyn's revisiting the same neo-nonesense he covered earlier, so let's wrap things up for today.

Tomorrow, I'll publish my analysis of the good, bad, and ugly of the first day of the war powers hearings.

War Powers Hearings Continue

Sam Brownback (R-Kansas).  Brings up the latest broadcast tape from al Qaeda.  Refers to the AUMF as a "war declaration."  Refers to the War on Terror as the "Cold War of our Generation."  

He's also talking about close cooperation between the executive and legislative branches being necessary to maintain public support for the "long war."  ("Long war" is the latest D.C. buzz phrase that emerged from the Quadrennial Defense Review.)

Gonzales has the good sense and grace to mention that the AUMF was not exactly a declaration of war.  Talk drifts to the Patriot Act.  

Brownback asks about what kinds of legislation Congress needs to make to support the war.  Gonzales says he'd like to consult with his experts and get back to the committee on that question.  

Brownback says he wants to fix the laws to suit the situation, and runs out of hourglass sand.

#

Leahy (D-Vermont) is back at bat.  

When did the administration determine the AUMF authorized warrantless wiretaps of Americans within the United States.

G-Man says it was subsequent to the passing of the AUMF and before the Patriot Act was passed.

Leahy repeats the question.  On what specific date did the administration reach its conclusions?

Gonzales repeats that FISA must be interpreted in a way that doesn't hinder presidential powers.  

Did the admin determine they had the power to ignore FISA before the AUMF

Gonzales tries to steer back to Hamdi, Leahy won't let him.

Leahy just caught Gonzales in a bald faced "disassemblage."  The business that Congress told the admin they couldn't write a law to cover the surveillance situation, Leahy calls him on it.  Gonzales has been hiding and lying.  Congress never would have found out about the NSA spy program if they hadn't read about it in the New York Times.

Gonzales is having trouble remembering specifics.

Oh! My! Gosh!  Leahy just caught Gonzales in a trap.  Were the Dems being dumb like foxes all morning?  Have they actually figured out how to beat the neo-con men at their own game?

#

Next round.  Orrin Hatch asks if Congress had a chance to express concerns about the NSA program.

Hatch is throwing more slow pitch softballs, trying to put blame back on the Congress, and also trying to make the Democrats responsible for everything.  

He also invokes the AUMF as justification for any and all acts by the administration.  He also makes outrageous claims about presidential powers under the Constitution, and says the NSA spying constitutes "reasonable searches."  

Hatch.  Shudder.  If he were the grandfather of my children, my children would never meet him.

#

Feinstein (D-California) again.  Gonzales' memory is beginning to fail him again, but that's okay.  Feinstein's line of questioning is equally scattered.  She once again invoked the term "plenary authority," as she did during the Alito hearings, once again making herself an unwitting wall in the administration echo chamber.  

Feinstein's out of her depth.  She should give up the rest of her time to Feingold and Schumer.  

#

Chuck Grassley (R-Iowa) again, pitching underhand, making sure each question has the proper, predictable arc.  

"This is about going after al Qaeda," Gonzales says.

Yeah.  

Explain to us how the NSA spying program almost exclusively targets innocent Americans, Berto.  

#

Russ Feingold (D-'s back up, and so is the tempo.  He's back to pinging Gonzales on legal specifics, and how Gonzales' previous arguments concerning precedents don't jibe with legislative timelines.  Surveillance actions taken by previous Presidents cited by Gonzales occurred prior to the enactment of the FISA law.  

Feingold appears to have his ducks lined up on the table in front of him, and Berto appears to be out of ducks.  And Feingold doesn't sound like he's of a mind to take his heel off of Berto's neck.

Feingold says Mr. Bush's remarks during the State of the Union address were misleading, and moves on.  

Now Feingold asks what else Mr. Bush has done that's legally questionable that we haven't heard about yet.  (Which I think is the other elephant that's hidden in the closet. What we've heard so far about torture, spying, and so on is just the tip of the iceberg)

Berto wants to be careful how he answers the question.  He's taking a pen and making scribbles on the pad in front of him, and declining to answer questions based on "operational considerations."

#

Jon Kyl (R-Arizona) back again, feeding Gonzo more straight lines, leading to "presidential authority" punch lines back from Gonzo.  

Kyl drops some seagull feces on the press for revealing the existence of the program.  

#

Schumer (D-New York) is back, jokes with Gonzo about how tired he must be now from a day full of bobbing and weaving.  

Schumer asks if an American's home or office has been searched without warrant warrant under the "terrorist surveillance program."

Gonzo won't give a straight answer.

Schumer won't let up.

"I'm not saying I will not answer," Gonzo says.  "I'm just saying I will not answer you at this time."

Schumer's got the so-and-so by the donut holes, and the so-and-so knows it.  

"We got a lot of questions to follow up on," Schumer says.

"I look forward to it," Gonzo  says.

"Me too, me too," says Schumer.

Schumer is rapidly becoming my number one political hero in the war to regain our republic.  

#

Mike DeWine (R-Ohio) back again, sharp as a basketball, giving us his interpretation of the AUMF.

It's 4:10 pm Washington time, and everybody's running out of gas, but I'm pretty sure DeWine started the day on an empty tank.  

#

Speaking of "out of gas," Ted Kennedy's on the mike again.  He looks like he's dying to get to happy hour at the Au Bar, and sounding like it too.  (In all fairness, he also had to go to the floor and deal with an asbestos legislation bill, which is a big deal.)

He is, however, making some good points about the wiretap abuses he's seen over his long career in the Senate.  And he's making a vital point, I think, about protecting the legal rights of the NSA spy issue whistle blowers.  

#

Specter's back from the floor, there's some talk about Corretta Scott King's funeral.  

#

Jeff Sessions (R-Alabama) is back in the box too, beating the drum again about the wife of the pilot killed in 9/11 that he paraded in front of the C-SPAN cameras this morning.

He's not even bothering to pretend to question Gonzales, he's reading nonsense about presidential war powers.  

George Bush couldn't possibly hope to own a dog more loyal than Jeff Sessions.  A smarter one, maybe, but smarts don't count for much in the Bush administration.  

Gonzales almost appears to be on a diabetic overdose after listening to Sessions' diatribe.  

#

Joe Biden (D-Deleware).  How has revelation of this program damaged it?

Gonzales says he'll have to defer to his colleagues in intelligence.  He's just a lawyer.  

Biden finally approaches a focused line of discussion 8 minutes into this 10 minute window, but as usual the issue remains unresolved as his red light flashes.

Biden needs to take an online community college course--Get to the Point 101.  

Berto asks permission to take a short break.    

War Powers Hearings: Turning into a Propaganda Rally

Leahy asks what specific language in the AUMF addresses wiretaps.

Gonzales refers back to the Hamdi decision, making an end around argument that the court said Congress had authorized the President to hold a U.S. citizen as an enemy combatant. And what's a little wiretapping compared to tossing somebody in jail?

Leahy tries to get a yes/no answer as to whether the AUMF allows the executive branch to open mail.

He doesn’t get a yes/no answer, and makes note of the fact he hasn't.

#

Orrin Hatch (R-Utah) steps up to the plate. He starts out citing case law that has upheld executive authority to engage in warrantless searches.

Gonzales says yes, warrantless searches as consistent with the Fourth Amendment are allowed.

Warrantless searches consistent with the Fourth Amendment?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Are they ever going to get to where Gonzales explains how a warrantless search can be consistent with this Amendment?

Hatch is in the bag. He's doing nothing more than feeding Gonzales straight lines, citing constitutional executive powers that don't appear in the Constitution and authorities granted by the AUMF that the AUMF doesn't mention.

#

Kennedy's been talking for about five minutes now. I'm still not sure what he's getting at.

Kennedy's time is up. Gonzales doesn't seem to be sure what he's getting at either, and I don't blame him.

#

They argue over whether to take a break. They take one.

#

"Pom Pom" Jeff Sessions outside the chambers on CSPAN. Today, there are 3,000 Americans who have no civil rights because they were killed on 9/11. He trots out a relative of a 9/11 victim (Debra Burlingame) who wants the spying program to continue.

I’m frankly shocked that C-SPAN would air this kind of unpaid staged political event.

Now they're giving Sessions exclusive time to push the propaganda.

Leahy had something to say, but they cut him off.

Incredible. Is there any journalistic integrity left in the broadcast media?

#

Chuck Grassley (R-Iowa) takes the megaphone. Have they caught the guy who leaked the program yet? All this hoopla over spying is the media's fault. If the administration has done something wrong, it's Congress's fault for allowing it to happen. If the New York Times hadn't broken the story, nobody in Congress would have had a problem with any of the domestic spying. Of course none of this is Grassley's fault because he wasn't privy to all the White House briefings.

9/11… 9/11… 9/11… Madrid, London, Bali…

The President's determined not to let this happen again. The NSA program is a matter of life or death for Americans.

This hearing is turning into the worst political joke I've heard in over a decade.

#

Joe Biden (D-Deleware) takes the stage. Here's hoping he's more coherent than he was during the Alito hearings.

He asks how we'll know the war on terror is over.

Gonzales says when al Qaeda is destroyed, certainly not today.

Biden points out there is no way to clearly define the end of the war.

Okay, out come the six shooters. Gonzales just challenged Biden (and Congress) to go right ahead and pass laws that limit the President's powers.

That's the real hole card in this particular poker game. The admin's daring Congress to limit its power, knowing they're afraid of who will take the blame if another 9/11 style attack takes place afterwards.

Three strikes, Biden's out. He didn't even manage to foul one off.

The Judicial Hearings: Swearing About Swearing In

The Senate Judicial Committee hearings on war powers have commenced. The committee will hear from only one witness today: Attorney General Alberto Gonzales, a key architect of the body of memorandums and legal opinions that argue for existence of "plenary" and "unitary" presidential powers.

#

So much for getting to the heart of the matter…

Chairman Arlen Specter has decided there's no need to swear Gonzales in. Senators Leahy and Feingold have objected. How long will this contest go on?

What's the problem with making the Attorney General take an oath to tell the truth?

Now we're having a roll call vote. Republicans vote to uphold Specter's decision, Democrats vote against. Specter made one vote by proxy. Feingold asks to see the proxies.

Jeff Sessions, Republican from Alabama and one of the administration's staunchest water boy, takes some time to state his objections to the objections.

We're twenty-one minutes into the hearings…

#

While they're swearing about swearing in, let's take a quick review of the previous bidding on presidential war powers.

Over the past months, the administration has consistently justified any and all actions of the executive branch on the basis of two documents: the U.S. Constitution and the Authorization for Use of Military Force (AUMF) passed days after the 9/11 attacks of 2001.

What overarching war powers are granted to the president by Article II of the Constitution? They're short and simple. The president is commander in chief of the military (not the country) and can make treaties with approval of two thirds of the Senate.

That's it. No torture, no domestic spying, no authority to override anything else in the Constitution or break any laws or treaties.

All other war powers described in the Constitution--including authority to declare war, regulate the armed forces, and suspend habeas corpus in times of invasion or rebellion--are granted to Congress in Article I.

Gonzales just now spoke of Mr. Bush's inherent constitutional authority as the sole agent of foreign policy and a whole bunch of other stuff the Constitution doesn't even hint at. I wonder if anybody on the committee will push back on that one?

Here's the key language from the AUMF:

…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Some members of Congress have said they did not intend for this language to allow for warrantless surveillance of American citizens and other legal residents whose rights are covered in the constitution.

Gonzales says it doesn’t matter what Congress meant when it passes the law; it only matters what the law says, and "all necessary and appropriate force," in his opinion, certainly covers the NSA surveillance program…

He also argues that the Supreme Court backed the administration's interpretation of the AUMF in the case of Hamdi v. Rumsfeld. In the decision, the court ruled that Mr. Bush was authorized to hold Hamdi, an American citizen, as an "enemy combatant."

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.
…
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

Therein lies the rub of the issue. The court, in effect, upheld Mr. Bush's right to deprive a citizen of his constitutional rights based on permission given him by Congress to do so.

Is it constitutional for Congress to grant powers to the President that are not allowed in the Constitution?

(Stop in later today and throughout the week for more commentary on the hearings. For a broader overview of the war powers issue, take a look at "Smoke, Mirrors and War Powers" at ePluribus Media Journal.

More Powers to Him: the Senate NSA Hearings

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


-- Fourth Amendment to the United States Constitution

This morning, the Judiciary Committee of the United States Senate begins hearings on what is the most vital issue of the post-9/11 age: the authority of a president to cast aside the Constitution and the laws and treaties.

The hearings will not just be about the warrantless domestic spying conducted by the National Security Agency. Purposely or not, they will challenge or acquiesce to the administration's claims of "plenary," "unlimited," and "unitary" executive authority in time of war, and determine whether the United States will remain a federal republic in which powers are divided among three branches of government or become a totalitarian state in which "rule of law" equates to the arbitrary dictates of one individual.

#

Since the early days of the Bush administration, Vice President Dick Cheney has been the leading voice calling for restoration of the powers of the presidency, powers he claimed had been eroded after the Nixon administration in the wake of Vietnam and the Watergate scandal. Cheney is especially critical of the War Powers Resolution of 1973, which restricted the ability of U.S. Presidents to wage extended wars unilaterally.

"That made a change in the institutional arrangements that I don't think is healthy," Cheney has said of the resolution. "I don't think you should restrict the president's authority to deploy military forces because of the Vietnam experience."

He was referring, of course, to the Vietnam War he declined to experience by virtue of not one, not two, but five consecutive college deferments, and which his boss avoided with a rich man's son's furlough with the Air National Guard.

#

Though Cheney led the campaign to expand presidential powers, he had plenty of high-dollar help supporting him from the rear. One of the key wizards behind the curtain was John Yoo, who during Mr. Bush's first term worked in the Justice Department's Office of Legal Counsel.

Presently on the faculty of the University of California at Berkley Law School and referred to in some circles as The Torture Professor, Yoo wrote or coauthored the key memoranda that encouraged the Pentagon and the White House to deny traditional protections to prisoners of war and detainees. He was also, along with current Secretary of Homeland Security Michael Chertoff, a principle author of the USA Patriot Act.

Two weeks after 9/11, Yoo single-handedly wrote the infamous memo that stated "In the exercise of his plenary [absolute] power to use military force, the president’s decisions are for him alone and are unreviewable."

One might be inclined to dismiss Yoo's written record as the work of a lawyer who was merely doing the best job he could for his client. Until, that is, one take a look at the transcript of a December 2005 debate between Yoo and Professor Doug Cassel, director of the Notre Dame Law School's Center for Civil and Human Rights.

Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?

Yoo: No treaty.

Cassel: Also no law by Congress—that is what you wrote in the August 2002 memo [the memo that outlined plenary presidential powers and unreviewable presidential decisions].

Yoo: I think it depends on why the president thinks he needs to do that.

That one of Mister Bush's most trusted legal advisors thinks it's okay for the commander in chief to crush a child's testicles in the name of national security should give you a perspective on the underlying pathology of the entire administration.

Coming up: what the Constitution doesn't say and what the administration says it does.

NSA=Not Stopping Anybody?

Starting Monday at P&S and ePluribus, we'll be following the Senate Judicial Committee hearings on the NSA domestic surveillance program. Despite all the coverage of the story, few people outside the NSA or the Justice Department actually know the actual nature of the program and how exactly the FISA law applies to it.

One not bad source on the subject is an article in today's Washington Post titled "Surveillance Net Yields Few Suspects" by Barton Gellman, Dafna Linzer and Carol D. Leonnig.

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks.

The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable. Other officials said the disclosures might shift the terms of public debate, altering perceptions about the balance between privacy lost and security gained.

The WaPo writers give a reasonably lucid description of the technologies and techniques behind the surveillance program that I'll let you peruse at the linked article. But here's one more alarming snippet worth featuring here:

Analysts build a model of hypothetical terrorist behavior, and computers look for people who fit the model. Among the drawbacks of this method is that nearly all its selection criteria are innocent on their own. There is little precedent, lawyers said, for using such a model as probable cause to get a court-issued warrant for electronic surveillance.

Jeff Jonas, now chief scientist at IBM Entity Analytics, invented a data-mining technology used widely in the private sector and by the government. He sympathizes, he said, with an analyst facing an unknown threat who gathers enormous volumes of data "and says, 'There must be a secret in there.' "

But pattern matching, he argued, will not find it. Techniques that "look at people's behavior to predict terrorist intent," he said, "are so far from reaching the level of accuracy that's necessary that I see them as nothing but civil liberty infringement engines."

We'll soon see if the Senate Judicial Committee gets to the bottom of this. I'm not optimistic. GOP committee member Jeff Sessions of Alabama stated on Face the Nation this morning that the domestic spying is legal, so you can bet he'll be asking some hard hitting questions.