The Federalist society is hosting an online debate on the Bush Administration's claim of executive privilege. For the "good guys" are Jack Balkin, Marty Lederman, Michael Dorf and Peter Shane. Not totally on topic but I loved this entry from Shane:

Chuck, The Dems do not need filibuster-proof support to defund selected positions in the Executive Office of the President. They simply have to refuse to pass out of the House any appropriations bill that contains such funding. Whether this is too blunt an instrument, I am not sure; it's a far more surgical strike threat than the 1995 government shutdown that Gingrich produced.

Zactly! On all issues!

As long as Jeralyn, Orin Kerr and Marty Lederman are speculating about what the legal dispute was that triggered the 2004 Comey crisis, I am going to throw my 2 cents in too. I think a thorough review of the original Times article, and the most recent article lead us to a reasonable speculation - that it was NOT the data mining itself that was objectionable but the use of the data mining results. Lederman writes:

[T]he most likely possibility -- the legal problem wasn't the data mining itself, but instead that the uses of the data that were mined violated FISA. The Times story hints at this -- that perhaps it was not so much the data mining itself, but instead what what NSA did with the mined data, that caused the legal uproar: "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used." . . .

Indeed, and I think we can trace where these concerns first started:

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it. . . . A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials.

The Judge's concerns, I speculate, led to a wholesale review by Comey and others and they came to conclude the program did not pass legal muster. More.

No GOP defenders for Gonzo:

Jeralyn, Glenn Greenwald and Anonymous Liberal take apart the NYTimes leaked defense. And I have a new point on the flip.

From tomorrow's NYTimes Editorial:

Democratic lawmakers are asking for a special prosecutor to look into Mr. Gonzales’s words and deeds. Solicitor General Paul Clement has a last chance to show that the Justice Department is still minimally functional by fulfilling that request.

If that does not happen, Congress should impeach Mr. Gonzales.

Apparently, the White House had a right blogger conference call on the ongoing executive privilege dispute. My first reaction is why would the White House do this? Why the reach oout to the Right bloggers on this issue? I can think of only one explanation - the White House intends to make a political fight out of this, not a legal fight. I mean honestly, if they were going to make this a purely legal dispute of Constitutional issues to be decided in a court, this would obviously be unnecessary. My other thought is that the White House is obviously very worried about the situation, particularly from a political perspective. Perhaps they felt the base was not supporting them as strongly as they expected. I really do not know as I have not followed the Right political blogs on this, but have read the good conservative legal bloggers like Volokh Conspiracy, which was decidedly lukewarm to the WH position. In any event, on the flip, I will review Captain Ed's take on the call.

Attorney General Alberto Gonzales has tossed himself into a legal pickle by answering questions in ways that, at this point, appear to have been untruthful. The question is why did he answer the questions at all? I mean 64 "I don't recall"s in his previous appearance. A flat out refusal to answer a question from Schumer in his last appearance. And think of this, as reported by Marty Lederman:

[A]t the Senate Judiciary hearing this week, Senator Durbin . . . asked the AG, in particular, whether it would be legal for a foreign government to subject nonuniformed U.S. personnel to five particular interrogation techniques -- "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution."

This was our Attorney General's shameful non-response:

"Senator, you're asking me to answer a question which, I think, may provide insight into activities that the CIA may be involved with in the future. . . . [I]t would depend on circumstances, quite frankly."

. . . In questions following a hearing last summer, Senator Durbin asked the each of the Judge Advocates General of the military services the same question about the application of Common Article 3 to such interrogation techniques. The JAGs -- Navy Rear Admiral Bruce MacDonald; Army Major General Scott Black; Marine Brigadier General Kevin Sandkuhler; and Air Force Major General Jack Rives -- have now submitted their answers, which are just a bit less equivocal, and quite a bit shorter, than the responses of the Attorney General, the President, and Mike McConnell:

QUESTION: Are those five techniques consistent with Common Article 3 of the Geneva Conventions?

ANSWER (from each of the JAGs): "No."

Q: Are they unlawful?

A: Yes.

So why answer the other questions instead of dodging them? Spencer Ackerman and Paul Kiel have a theory:

AP:

FBI Director Robert S. Mueller said Thursday the government's terrorist surveillance program was the topic of a 2004 hospital room dispute between top Bush administration officials, contradicting Attorney General Alberto Gonzales' sworn Senate testimony.

Think Progress:

Sens. Charles Schumer, Dianne Feinstein, Russ Feingold, and Sheldon Whitehouse explained in a letter to Solicitor General Paul Clement that “it has become apparent that the Attorney General has provided at a minimum half-truths and misleading statements” to the Judiciary Committee. They wrote:

We ask that you immediately appoint an independent special counsel from outside the Department of Justice to determine whether Attorney General Gonzales may have misled Congress or perjured himself in testimony before Congress.

Josh Marshall has a, to me, very inadequate post this evening on what to do about the Bush Administration:

Without going into all the specifics, I think we are now moving into a situation where the White House, on various fronts, is openly ignoring the constitution, acting as though not just the law but the constitution itself, which is the fundamental law from which all the statutes gain their force and legitimacy, doesn't apply to them.

If that is allowed to continue, the defiance will congeal into precedent. And the whole structure of our system of government will be permanently changed.

Whether because of prudence and pragmatism or mere intellectual inertia, I still have the same opinion on the big question: impeachment. But I think we're moving on to dangerous ground right now, more so than some of us realize. And I'm less sure now under these circumstances that operating by rules of 'normal politics' is justifiable or acquits us of our duty to our country.

It is so frustrating to me when smart people like Josh (he's a Brown grad too, snark) just up and ignore the remedies that the Congress has available to it. Now it just so happens that I favor impeachment of Gonzales but do not favor impeaching the President.

But I do favor the Congress using its many powers - the Spending Power, the inherent contempt power - in nontraditional ways to check the Bush Administration's behavior. Why does Josh throw up his hands instead of urging the Congress to use the power it clearly can apply - on Iraq, on Gonzales, on just about everything.

More.

From the AP:

Documents show that eight congressional leaders were briefed about the Bush administration's terrorist surveillance program on the eve of its expiration in 2004, contradicting sworn Senate testimony this week by Attorney General Alberto Gonzales.

The documents, obtained by The Associated Press, come as senators consider whether a perjury investigation should be opened into conflicting accounts about the program and a dramatic March 2004 confrontation leading up to its potentially illegal reauthorization. A Gonzales spokesman maintained Wednesday that the attorney general stands by his testimony.

At a heated Senate Judiciary Committee hearing Tuesday, Gonzales repeatedly testified that the issue at hand was not about the terrorist surveillance program, which allowed the National Security Agency to eavesdrop on suspects in the United States without receiving court approval.

. . . A four-page memo from the national intelligence director's office shows that the White House briefing with the eight lawmakers on March 10, 2004, was about the terror surveillance program, or TSP. The memo, dated May 17, 2006, and addressed to then-House Speaker Dennis Hastert, details "the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program," wrote then-Director of National Intelligence John Negroponte.

It looks more and more like a Special Prosecutor is in order.

Ed Morrisey writes a very perplexing post that seems utterly incorrect to me. He says:

Tony Snow rather forcefully responded to this development, calling it a singular event in American history, where the legislative branch will direct the executive branch -- in the form of the federal prosecutor -- to file contempt charges against itself.

Of course this is NOT a singular event as anyone who has read the CRS report would know. Indeed, the curent White House counsel Fred Fielding was involved in the most recent of these in the 1982 Burford matter, when the Reagan White House caved in to the Congress when faced with a contempt citation. I suspect there is a strong possibility the White House will cave in again. Wonder what Ed will think then. More.

It begins:

The House Judiciary Committee voted today to issue contempt citations for two of President Bush's most trusted aides, taking its most dramatic step yet towards a constitutional showdown with the White House over the Justice Department's dismissal of nine U.S. attorneys. The panel voted 22-17, along party lines, to issue citations to Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel. Both refused to comply with committee subpoenas after Bush declared that documents and testimony related to the prosecutor firings were protected by executive privilege.

More.