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3:30 I'm out for the remainder of the day. Head to Firedoglake for continued coverage.

3:25PM Feinstein is once again rebutting the "Clinton did it" nonsense. Clinton did it because there was no law, and following the actions they asked Congress to amend FISA to cover those actions. On to the briefings of "the big 8," the senior leaders of Congress. She claims this is also a violation of the laws, and is detailing how and why based on statute. Her questioning this time around is much better than this morning.

3:15PM Back to Sen Hatch. He's trying to lower the energy level in the room, no doubt. He's a good defense lawyer. He's feeding his client the answers he wants to hear. Nice. Except, of course, that his oath of office is to protect and defend the constitution, not President Bush. And it is giving Gonzales a chance to show the truck-sized holes in the original AUMF. As many of us here on the left said at the time, the AUMF gave Bush too much authority. Throughout our history it has always been dangerous to grant the president vague, unrestricted grants of power. Politicians on both sides are at fault for that.

Hatch moves on to talk about how hard it is to get anything done in Congress. His point I suppose it to suggest that it is in fact better to break the law than struggle through the process of changing them. And then he's back on the "Clinton did it too" line. Again, bizarre. Clinton did it so it is OK? What kind of defense is that? How can that possibly make sense to someone who helped lead the impeachment proceedings against Clinton? If Hatch serves long enough, one day he is going to have to eat these words. Conservatives are arguing for unrestrained inherent presidential powers. Barry Goldwater must be rolling in his grave.

3:05PM Back to Leahy. He's returning to his question from this morning about precisely when the administration authorized the program. Gonzales was just forced to admit that it came after the AUMF but before the Patriot Act. Wow. And Leahy's on it - if they determined it BEFORE the Patriot Act, why didn't they say anything about it during the debate over the Patriot Act? Was the Patriot Act just a charade? Why not just get it put into the law? And he's hammering him on the "it wouldn't have been possible to get it changed" argument. They've had 5 FISA amendments passed through the Judiciary Committee, but this has never once been discussed with them. Wow. Leahy is pissed to the point of getting sarcastic. Good. The media needed some drama, and this will provide it. Look for highlights of this on the news tonight.

2:55PM Sen Brownback is now going on and on about the threat, once again reading speeches from Osama bin Laden into the record. Brilliant. And he's now trotting out the claim that this program could have helped stop 9/11. These people have no shame. For the record, we knew the 9/11 hijackers were in the country, and a number of them were already on watch lists. The problem was that we DIDN'T DO ANYTHING ABOUT THAT. Knowledge wasn't the issue - action was.

But Brownback has now moved forward to a valid point. If this war is going to be a "long war" we cannot simply use the post 9/11 Afghanistan AUMF as our controlling statute. Why not make this explicit with new legislation? Here's my answer: Because to do so would require them to admit what they have been doing all along is far more than what they have admitted. But back to Brownback... He's asked if the 72 hour limit is the problem, if extending it would help. Gonzales says no, that's not the problem. The problem is the paperwork. Interestingly, Gonzo points out that we have no "declaration of war." Shouldn't we then stop calling it a war?

And good god... Brownback just asked him what changes would allow them to use FISA more often, and Gonzo says he needs time to think that through. Think that through? If the claim is that its too cumbersome, shouldn't he already know why it is cumbersome? Shouldn't he have thought this through before coming to the hearing today? The hearing is about the legalities of their actions. It is about why they have not used FISA. Shouldn't he have thought about the specific ways to improve the program before coming to Congress? Wouldn't making the system work better strengthen our national security? What's wrong with these people!?!

2:40PM Blogger seems to be down once again. HAve I mentioned recently that they suck? Too bad I don't have time to migrate my blog right now. This summer Now on with the liveblog...

Sen. Durbin just destroyed the "FISA is a useful tool" for the administration argument. The point - the ENTIRE POINT - of FISA was that it was a limit placed on executive authority. It's not merely a tool. Then he moves on to their "inherent constitutional powers" argument relative to Gonzo's testimony during his confirmation hearings. And Gonzales' answer is insane - he says that going around FISA is precisely what the FISA statute contemplated. He says that they're reinterpreting FISA so that it doesn't conflict with the president's inherent authority. Durbin is right - why not just get the law rewritten, particularly given the fact that there was only one dissenting vote when the Patriot Act was first enacted. Man, Durbin is on fire. He's quoting the FISA statues, he's quoting O'Conner's... And he's got him on the language of FISA - it says "exclusively," and unless you're playing Clintonian "it depends what the definition of 'is' is" games that meaning is clear.

This administration's argument is insane. The AUMF cannot be read to allow the president to do whatever he wants regardless of existing statutes. This is a nation of laws not of men. Threats to the nation should not and cannot excuse casting aside the rule of law.

2:22PM Sen Schumer is leading off with liberty vs. security vs. rule of law. Good. This is a traditionally "conservative" argument that should resonate with many Americans on both sides of the aisle. Warrantless wiretaps are a direct threat to liberty, no matter what the national security questions involved. That's why we absolutely must conduct this program under explicit Congressional grants of power and oversight. But then the Senator went down a bizarre little rabbit hole about the rules under which former DoJ officials should testify. Again, I understand the point, but I wish he had spent his time better. You get 10 minutes - why spend 8 on that?

2:05PM Sen Graham is now up. Interesting to note that few if any of his Republican colleagues have returned to the hearings. Graham is a jackass, but he does agree with Sen DeWine that we should clarify this under law. He's using the slippery slope argument, but in a new way. If we allow this to move forward under the current AUMF, the next president is going to have a hard time getting an authorization of the use of force, and that if it is approved it will come with "exceptions a mile long." Bravo. Now why aren't any Democrats taking this line of attack? This is a true national security winner. It will weaken the hand of the future not just now but also later.

And wow, he's now moving on to conflicts between the Uniform Code of Military Justice and orders from the President of the United States in his role as Commander in Chief. And Gonzo's response is so weak that Graham cut him off. Graham's point is that a conflict like this places the people in the military at risk. It places them in the middle of a dangerous constitutional debate and opens them to potential legal issues. Graham's 10 minutes have been the best so far. Will the Dem on tap next followup like this? Gonzo's response is a ridiculous dodge to Graham's straightforward questions and concerns. I don't generally like Sen Graham, but I have to give him some serious kudos today.

1:55PM Sen Feingold. This is what I think we've all been waiting for. Good for him to head straight in by pointing out Republicans who have questioned the program. And wow: "The President has a pre-1776 view of the world." He's now moving on to his previous testimony during his confirmation hearings on the program, and he has straight up accused him of lying. Expect to see this on the evening news tonight. And expect Feingold's presidential stock to rise if they do.

1:45PM They've decided they'll need to go on to a second day. And today will go until 5pm, not 4pm. Hmmm... Might not be able to blog the entire thing. I've got to head out at 4pm, so you'll have to look elsewhere for the 4-5 stretch. And unless they do another Monday hearing, for day two as well.

12:35PM Lunch. Back in an hour+

12:30PM More bloviating from the right. I understand that politicians play politics, but c'mon... This issue is bigger than one president or one administration. I just cannot understand why Republicans cannot see this. The Congress has performed virtually no oversight in the last 5+ years. None. And that is a very, very dangerous precedent for this nation. Madison believed that only by marrying the ambition of the man to the duties and powers of office could you preserve liberty. The system was designed with the presumption that Congress would always act to check the power of the president. They didn't expect the Congress to just lie down and roll over.

Another point worth noting. The administration and its defenders are falling back on the Hamdi case as an important precedent. Fine. But I suspect one day that decision will be overturned. The idea that the president can under the constitution detain a US citizen without warrant or charge is absurd. Can anyone honestly believe that the Framers intended that? That they amended the constitution to explicitly prohibit unreasonable searches and seizures but yet would have allowed the indefinite detainment without a warrant of a citizen? For god's sake.. they passed an amendment to prohibit the quartering of soldiers!

Finally, credit to Gonzo for shooting down the whole "Clinton did it too!" line of thought. Clinton did it, Congress objected, and the FISA law was amended. He's right. And yet they cling to this argument. Are they seriously suggesting that, despite a Congressional action to the contrary, the legal opinions of the Clinton administration should be controlling? That the Clinton administration was in essence more right than the Congress? Is anyone going to point out to them how insane that is?

12:15PM Sen Feinstein is up next. More agreement on how we must pursue the terrorists. And then a bunch of questions about the president or the attorney general lying to the public. Again, I understand the point of this in general, but in the context of this hearing it is utterly pointless. Worse, she is reading from a series of questions and statements that were clearly prepared before his testimony. He's already very carefully dodged most of these, so this is just giving him the opportunity to snap back at her. Gonzales is not an idiot, but she is acting like he is.

But now she has moved on to the specifics of FISA, and here she is much stronger. Get him to cite passage and verse, and then question him in detail. This is the approach that should have been taken from the start. I realize it won't play well across the nation, but it is critical for the constitutional issues involved. This isn't about politics, its about the very nature of our system of government.

2 minutes of decent questioning, and then a bunch of questions she knows full well he won't answer. What is the point of this?

12:00PM Now this is interesting. Republican Sen DeWine is suggesting that even thought the program might be legal, the president and the nation would be stronger if the program were explicitly authorized by statue. He's right, it would make the program much less divisive. It would answer the constitutional questions. This is the line of questioning we need to hear more of. If the program is both legal and effective, why not explicitly authorize it?

11:55AM Sen Kohl is making a good point... If the power is both obvious and inherent, why was there so much debate in the administration over the program? If there was debate, it suggests it wasn't an open and shut case, thus indicating that we should make this clear through statute. Gonzales keeps going back to "we can't amend FISA because then the enemy will know what we are doing." So what are the limits on the president? Well, Gonzales says that the constitution limits him. But if the constitution is what the president says it is....

They've now returned to the domestic to domestic al Qaeda issue. Again, I see where they are going, but this is ridiculous. They're attempting to show how this program isn't effective, but the natural conclusion to this line of questioning is that this program should be expanded to include purely domestic calls. If this is their attempt to look strong its pathetic. It entirely misses the point of today's hearings.

11:45AM I knew it. Republican Sen. Kyl picked up on Biden's claim and is suggesting that in fact the president should expand the program. Brilliant. But he then moved on to suggest that the administration brief Congress on this program every 45 days. That is an entirely reasonable suggestion that Gonzales entirely dodged.

11:25AM Here comes Biden. Will he actually ask a question? Amazingly, yes. He spent most of his time establishing the fact that the Intelligence Committee needs to meet to consider the particulars of the president's program. Fine. But it seems to me that should be a secondary consideration.

He also spent some time asking why the president isn't using this program to wiretap purely domestic phone calls. Brilliant. Why on earth did he suggest an expansion of the program? This is going to get framed as support for an expansion.

11:15AM Sen. Grassley is focusing on who leaked info on "terrorist surveillance programs" to the press, and that when compared to this the Plame leak was a "two bit nothing." Wow. Leaking the identity of an undercover CIA agent for political purposes is a "two bit nothing"? And then he moved on to asking leading questions that describe how normal and fabulous the program is.

But here's one thing I'm tired of. "We're at war." No, I'm sorry. We are not. There has been no declaration of war. Legally, September 12 is not the same thing as Dec 8. But how do you make that point without getting misquoted in the media?

11:10AM Unbelievable. They've brought to the proceedings the wife of the pilot of the plane that was hijacked and flown into the Pentagon as some sort of witness. She's even giving a statement to the press during the break. What precisely does she know about the constitutionality of this program? What does she know about the NSA? Its sad that she is willing to allow herself to be used this way, and even worse that the Republicans are willing to use her this way. And even worse that tactics like this work on anyone.

11:05AM 10 minute break. The Dems are hitting hard, but if all of the Republicans are simply going to tow the administration line I'm not sure what will come of this. Should the Congress cede power to the executive here we will one day come to regret this. For the record this isn't a power I want a president of any party to have. But with this as precedent, it will greatly expand the inherent authority of the president. It will be interesting to watch how the Republicans follow or do not follow their own precedent.

11:00AM Sen Kennedy is hitting him hard on the national security implications. This to me is what is most critical. If they don't get statutory authority and their actions are later held by the courts to be held unconstitutional, that will the exclusion of evidence that is critical to our national security. Their choice here to avoid Congressional oversight is quite literally a threat to national security. There is no reason - NO REASON - not to get statutory authority here. Forget reading this into the AUMF. That's crazy. Settle this with an act of Congress. But they aren't willing to do that. Why? Even if they aren't hiding something, it makes it seem like they are.

10:50AM Sen Hatch just gave a rousing defense of presidential authority. Amazing to watch a member of the Senate defend the authority of the executive branch. I'm not entirely sure that is what Madison, or even Hamilton for that matter, had in mind. Odd for a man who led the charge on oversight during the Clinton years on a wide variety of meaningless issues.

10:45AM - Leahy is pissed! Gonazlaes just tried to use 9/11, and he reminded him that he was in fact in the Capitol on that day and will never forget it.

Leahy is working out the exact timeframe of when the program began relative to various Congressional acts, including the Patriot Act. Timing is absolutely critical to legality, so this is very important. Gonzales says he isn't sure, but Leahy wants him to answer after lunch.

Leahy moved on to question him about what else the AUMF might have authorized, but he won't say. And damn is Gonzales smug while he dodges.

10:33AM Specter is actually hitting him pretty hard. But Gonzales won't even comment on how the information is being used by FISA, or if they have ever refused to issue a warrant because the information came from the program.

Now somehow Gonzales claims that the program only wiretaps calls that they have a high degree of confidence will directly involve al Qaeda. But then how does he explain the Washington Post's article yesterday detailing thousands of intercepts and only a tiny handful of actual suspects? Let's hope one of the Dems follows up on this, both on efficacy on legality. It fails on both counts.

Via Firedoglake, Gonzales opening statement in full.

10:23AM Wow. So many ridiculous statements coming from Gonzoals I don't know where to start. He's claiming that FISA can't encroach on the executive's power. Think that through and it means an act of Congress can't encroach on the executive.

He used President Wilson's WWI surveillance program as precedent, one that virtually everyone agrees was unconstitutional even though we had in fact declared war. An authorization of the use of force is very different than a declaration of war, and there is a reason that they are considered different actions under law.

He then claimed that he 4th Amendment has a "reasonableness standard." Shouldn't the Attorney General know what the 4th Amendment says? Yes, it says "unreasonable searches," but that must be taken in context:

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.

Next, he claimed that the Authorization of the Use of Force was in fact meant to waive the FISA requirements. That's a dangerous argument, given how broad the authorization is. The Dems need to hit hard on that point. And what will Specter do?

Next, he's claiming that FISA is "too cumbersome." Fine. Then change it by law, not by fiat. We have a separation of powers that in truth is both a separation and a sharing of powers. If a law passed by Congress and signed by the President is "too cumbersome," the president cannot simply ignore it. He must return to Congress and ask for a change to the law.

Next, he's claiming that FISA as it stands would somehow be similar to asking soldiers to bring lawyers on the battlefield.

And finally, he's going on and on about how the "terrorists must be smiling" as they watch this discussion. That's just shameless.

On to Specter....

10:08AM Gonzales claims that the program needs reauthorization every 45 days, but that it is the NSA itself that does the reauthorization. And that the Congress has been briefed on this. I'm sorry, but no. Congress needs to do the reauthorization.

10:03AM Gen. Gonzales is giving his opening statement. He's opening with the idea that we shouldn't "shrug off" warnings from al Qaeda. Hmmm. You mean like "bin Laden determined to strike in US"?

10:00AM Leahy - "Under our constitution Congress is the coequal branch and we make the laws..." And then a strong lecture on the rule of law.

9:57AM Lost the swearing in argument, but the hearings are off to a good, hostile start. The worst thing that could have happened was a boring and congenial hearing. And Leahy's opening statement is angry, both about the wiretap program and about charges that he is weak on security. The Dems need to come out swinging on national security, and need to make it clear that they're angry because they think the program isn't helping national security, but is hurting. And so far, so good...

9:40AM We're already off to a piss-poor start. Not only is Specter not going to require him to testify under oath, he's also going to put off any discussion of the administration's unwillingness to turn over executive memos on the subject. And as if that's not enough, he used the Roberts' confirmation hearings as a precedent on that issue. Wonderful.

Both Sens. Feingold and Leahy are pushing back hard on this, but they're not going to win, despite their putting the issue to a roll-call vote of the committee.

This really is just unbelievable. This is the Attorney General of the United States. His testifying under oath shouldn't be a problem, particularly given the fact he has already agreed to do it! And to listen to Republican's go on and on about how this shows a lack of respect for the executive brach when the entire point of the hearing is that the executive branch might be acting unconstitutionally! This isn't about politics. It is about the constitution. Why do the Republicans not want to protect the constitution as much ass the administration?

9:20AM Some background for you on the NSA hearings. Kevin Drum has a great Q&A on what we know so far. Firedoglake has a great summary of Glenn Greenwald's appearance this morning on CSPAN. And of course, there's the incredible work of Glenn Greenwald himself

ThinkProgress has two critical important posts.

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