Foreign Intelligence Surveillance Act
The President and his Attorney General have a really simple message that they are spreading on the NSA Domestic Spying issue. The jist is that they are not spying domestically as long as one of the parties is in another country. The rationale they are trying to push is that a little clause in FISA allows them to rely on the Iraq and Afghan War Resolutions to give them some sort of authority to run this program. I'm not a lawyer, but the legal rationale they are using is so weak, that the Senators on the Judiciary Committee spent the entire day yesterday poking holes in it. By the end of the hearing, Gonzales had contradicted himself so much and avoided so many questions and answered so many insufficiently, that even the Republican Senators on the Committee were getting ticked off.
The bottom line is this:
Of course FISA applies in the President's scenario. It's called the Foreign Intelligence Surveillance Act and begins by stating that it's the "exclusive means" by which the President can spy on domestic-international calls. Nothing more needs to be said. All the other rationales are so weak, no one buys them...
1) The program is clearly outside the law anyway you look at it, but if the White House admits that, Congress has no choice but to Impeach on Treason charges, and for obvious reasons, that would suck for them. They instead HAVE to continue to insist that the program is legal as they have outlined it.
2) Democrats in the Senate are furious and although they were smelling a rat a year ago, they have one clearly in their hands now. I was inspired by Feingold's bulldog impression yesterday, but I also think I get the strategy.
3) Republicans are scared to death. They don't like or approve or believe the rationale for this program and they know the administration is in hot water. They are taking the approach that the White House should have just gone to Congress and asked for a law change so the program was legal. They are literally pleading with the White House to let them pass a law that makes this legal hoping that by legalizing it quickly before the public gets the program details and goes ballistic, they will relieve the pressure that's building from both sides of the aisle to do something about this.
This is the catch-22 that the White House now finds itself in...
If they continue to insist that the program is legal, they are opening themselves up to more and more Congressional hearings and most likely impeachment... potentially before November if enough Repubs get nervous that their seats are in jeopardy, but more and more likely after November when the Dems take over Congress in the public outrage that's brewing just slightly below the surface.
If they take the Republican's plea bargain offer, it is effectively an admittance of guilt (i.e. why would you need to change the law to accomodate a rationale that's already legal???), and the legal implications are severe. They not only open themselves up to probable legal infractions on this program, but find themselves in the position of disclosing all the other programs they may be running illegally under their faulty rationale.
The White House can't win this one. Breaking the law by the top person or persons we put in charge of upholding it and enforcing it is not something the American people take lightly...ask Nixon...