The Administration, after violating FISA for years while claiming the President as Commander in Chief during Wartime is a King, now wants the Congress to codify violations of the Fourth Amendment:

The Bush administration yesterday asked Congress to make more non-citizens subject to intelligence surveillance and to authorize the interception of foreign communications routed through the United States. Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. . . . The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

This would run afoul of the Fourth Amendment. In U.S. v. Duggan the Second Circuit explained why FISA as currently written is constitutional:

This is not to be believed:

Now that Democrats are also demanding access to the political e-mail, the White House took steps on Thursday to use those latest demands as leverage to force Democrats to accept the White House’s conditions for making Mr. Rove and the others available.

In a letter to Mr. Leahy and Representative John Conyers Jr., chairman of the House Judiciary Committee, Mr. Fielding, the White House counsel, said the administration was prepared to produce e-mail from the national committee, but only as part of a “carefully and thoughtfully considered package of accommodations” — in other words, only as part of the offer for Mr. Rove and the others to appear in private.

Mr. Conyers, a Michigan Democrat, issued a tart reply: “The White House position seems to be that executive privilege not only applies in the Oval Office, but to the R.N.C. as well. There is absolutely no basis in law or fact for such a claim.”

The plot thickens:

We have also been advised that there may be RNC e-mail traffic relating to Republican Party concerns about the United States Attorney in Milwaukee, Wisconsin, prior to his announcing, on the eve of the hotly contested 2006 gubernatorial election, that he was indicting an official in the incumbent Democratic governor's administration.

TPM is killing on this story. Can a blog get a Pulitzer?

This is pretty darn shocking:

According to Mr. Kelner [RNC counsel] . . . as a result of unspecified legal inquiries [Fitz probably], a "hold" was placed on this e-mail destruction policy for the accounts of White House officials in August 2004. Mr. Kelner was uncertain whether the hold was consistently maintained from August 2004 to the present, but he asserted that for this period, the RNC does have alarge volume of White House e-mails. According to Mr. Kelner, the hold would not have prevented individual White House officials from deleting their e-mail from the RNC server after August 2004.

Mr. Kelner's briefing raised particular concems about Karl Rove, who according to press reports used his RNC account for 95% of his communications. According to Mr. Kelner, although the hold started in August 2004, the RNC does not have any e-mails prior to 2005 for Mr. Rove. Mr. Kelner did not give any explanation for the e-mails missing from Mr. Rove's account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his e-mails from the RNC server.

Holy crap! Um, Fitz, you got any questions about this?

Please go away Gonzo, so says an LATimes poll of the American People:

Most Americans believe Atty. Gen. Alberto R. Gonzales should resign because of the controversy over his office's firing of federal prosecutors, and a big majority want White House aides to testify under oath about the issue, the Los Angeles Times/Bloomberg Poll has found. The survey, conducted Thursday through Monday, found that 53% said Gonzales should step down [36% say he should not]

Here's the reason why Gonzo will be gone after the 17th:

Senate and House Democratic leaders have asked White House aides to testify under oath about the firings, in part to answer questions about the roles of Gonzales and Karl Rove, President Bush's chief political strategist. Bush has rejected those requests, but the poll found that 74% of the public believes his aides, including Rove, should comply.

The string has been played and Rove matters more than Gonzo to Bush. To resist testifying, Bush will neeed to serve up Gonzo. Then the Media can start the wankery, saying "enough, no more witchhunts." Richard Cohen is already warming up for that.

Update [2007-4-9 11:54:52 by Big Tent Democrat]: Jack Balkin makes similar points with much less verbiage.

Linda Greenhouse yesterday wrote with seeming mirth about Chief Justice John Robert's biting dissent in the EPA/Global Warming case. In particular, Greenhouse appeared to enjoy Justice Stevens' invocation of federalism as a basis for granting standing to the petitioners:

In the majority opinion, Justice John Paul Stevens found five votes for the conclusion that Massachusetts not only met all three tests but was also entitled to special deference for its claim to standing because of its status as a sovereign state. Invoking no modern precedent — because there was none — to support this new theory of states’ rights, Justice Stevens deftly turned the court’s federalism revolution, which he has long opposed, on its head and provoked an objection from the chief justice. States have “no special rights or status” when it comes to standing, Chief Justice Roberts said.

While this is all just another manifestation of legal realism from all of the Justices, I do think it has some interesting implications that go beyond this discrete issue. I'll discuss why I think so on the flip.

Via TPM, the Gonzo Justice Department is at it again, this time smearing the Minneapolis prosecutors who self-demoted themselves:

Ms. Paulose’s defenders at Justice Department headquarters said the criticism of her was unwarranted. They said older lawyers had difficulty dealing with a young, aggressive woman who had tried to put into place policies important to Mr. Gonzales like programs to combat child exploitation.

Yes, these older, sexist lawyers were in favor of child exploitation you see. That is why they don't like Ms Paulose.

Michelle Malkin must be eating this up.

Took a while:

A top aide to Attorney General Alberto Gonzales abruptly quit Friday, almost two weeks after telling Congress she would not testify about her role in the firings of federal prosecutors. There was no immediate reason given, but Monica M. Goodling's refusal to face Congress had intensified a controversy that threatens Gonzales' job.

She resigned in a three-sentence letter to Gonzales, calling her five-year stint at Justice an honor and telling him, "May God bless you richly as you continue your service to America."

. . . "While Monica Goodling had no choice but to resign, this is the third Justice Department official involved in the U.S attorney firings who has stepped down," said Sen. Charles E. Schumer, D-N.Y., who was among the first senators to question the firings and the first to call for Gonzales' resignation. "Attorney General Gonzales' hold on the department gets more tenuous each day," Schumer said in a statement.

I love fights over words. They remind me of the Clinton era and the battle over the meaning of the word "is."

Trial starts next week in a lawsuit by the makers of Equal against the makers of Splenda. For the record, I switched to Splenda years ago, when I got the impression, however founded or unfounded, that Splenda was the more healthy of the two.

The issue: What does the phrase "made from sugar" mean?

To me, "made from sugar" means the product began with sugar and got converted to something else in the manufacturing process. Equal, which has seen a huge dip in sales since Splenda began marketing its product, says Splenda is making a false assertion because there's no sugar in the product.

More...

As discussed here, the Solicitor General adopted a narrow procedural approach to avoiding the SCOTUS hearing the Boumediene Gitmo habeas case.

The approach was successful:

"There is no need for this court to assess the adequacy of the...review before it has taken place," Solicitor General Paul Clement, the administration's top Supreme Court lawyer, wrote.

The court is likely to be faced with the same cases it rejected Monday once the appeals court begins conducting reviews. Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter voted to accept the appeals. "The questions presented are significant ones warranting our review," Breyer wrote. In addition, Breyer and Souter said they would have heard the case on a fast track, as the detainees requested.

And in a sign that the court has not had its final say on the matter, Justices Anthony Kennedy and John Paul Stevens made clear in a separate opinion that they were rejecting the appeals only on procedural grounds.

Yes, the New Age "Four Horseman" - Scalia, Thomas, Alito and Roberts, voted to not hear the appeal without reservation.

mcjoan points out AG Alberto Gonzales' line in the sand defense:

Attorney General Alberto Gonzales, amid a growing clamor for his resignation, acknowledged Friday confusion about of his role in firing eight U.S. attorneys but said he doesn't "recall being involved in deliberations" over which prosecutors were to be ousted.

. . . "I signed off on the recommendations and signed off on the implementation plan, and that's the extent of my involvement" . . .

So Gonzales' argument is, in essence, I am not a liar, I am just an incompetent. The firing of 8 US Attorneys did not merit his involvement. That is his defense?!

For Bush, saying you are not a liar is good enough. Think Brownie, Harriet Meirs, Rummy, Doan, Cheney . . .

I have no idea why this deal was struck:

The House Judiciary Committee has worked out an agreement to have transcribed interviews with at least eight current and former employees of the Justice Department behind closed doors. The committee said that the deal followed a series of phone and written negotiations. The first interview will be today with Michael Elston, Deputy Attorney General Paul McNulty's chief of staff. Following will be interviews with McNulty, Associate Deputy Attorney General David Margolis; the former director of the Executive Office for United States Attorneys Michael Battle; Monica Goodling, the DOJ's liaison to the White House (now on leave); acting Associate Attorney General William Mercer; and Assistant Attorney General William Moschella.

Why in Gawd's name was this deal struck? There is not even an executive privilege claim here. What am I missing? This seems supremely stupid to me.