PRESS THE NEWS

Specter asks this, not necessarily because the program unambiguously violated FISA, not necessarily because the program unambiguously violates the Constitution, and not necessarily because the program was clandestinely authorized (and had to be discovered via leaks, which the administration now also condemns), but because, on top of all this, the administration has not even been forthcoming about the program itself.

As Representative Heather A. Wilson (R-NM) put it in a press release (which did not get the press it deserved), back in February, the issue is fairly simple:

The duties of the Congress and the President under the Constitution are different.

The President is the commander in chief of the armed forces. He executes the laws, administers programs and conducts our foreign affairs.

The Congress makes the laws. We oversee their implementation and authorize the creation of agencies, departments and programs. We regulate the armed forces, and appropriate the money.

This system of divided power with checks and balances is derived from our Constitution, but woven into our civic life and it has done exactly what our founding fathers intended it to do: it has kept us free.

The men who wrote our Constitution were quite familiar with armed conflict. Even in time of war, they feared a strong executive with a standing army that might erode the precious liberties that they had risked everything to secure. Our Constitution with divided powers operates in war and in peace.

When the Congress authorizes the President to used force against an enemy, we are not relinquishing our powers under the Constitution, we are exercising them.

As noted in this piece linked above:

[The Article II, Section 3] requirement that the President take care that “the laws be faithfully executed,” is not magically suspended (particularly when it is the executive branch itself that is not following the law), by Article II, Section 2's, "Commander in Chief" clause, just because the Executive Branch can make an argument that it somehow relates to a war effort. [Nor is the Article 1, Section 1 requirement that "All legislative Powers herein granted shall be vested in a Congress of the United States."]

To do so would render the separation of powers concept virtually meaningless in any time of war, stated or implied. This is also something which clearly would have been noted -- were this our Founders' bizarre intent -- by some constitutional reference beyond "Commander in Chief." Moreover, prior to the Bill of Rights, the separation of powers concept, along with a general check on the government's overall power - -also very much at issue here -- was the main purpose for establishing our Constitution in the first place.

NY Times Reporter Eric Lichtblau, one of the two reporters who first broke the story about the clandestine program back in December, writes that Representative Wilson; "said in an interview that she had 'serious concerns' about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about whom the agency is monitoring and why." Although the interview was not reported, Wilson's office affirmed that Lichtblau's characterization was accurate.

Representative C.L. Otter (R-ID), Assistant Majority Whip, stated: "The Founders envisioned a nation where people’s privacy was respected and the government’s business was open… These actions turn that vision on its head."

Senator John McCain (R-AZ), mincing words (or perhaps he has not read the linked piece above), when asked if the Executive Branch had the legal authority to engage in the (still ongoing) program, "you know, I don't think so."

Senator Chuck Hagel (R-NE) stated that; "no president can dismiss a law. …we need wiretaps … but there’s a right way and a wrong way to do that.”

Senator Olympia Snowe (R-ME), along with Hagel, were signatories to a letter stating: "We write to express our profound concern about recent revelations that the United States Government may have engaged in domestic electronic surveillance without appropriate legal authority."

Senator Lindsey Graham (R-NC) "If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don’t know of any legal basis to go around that."

On May 2, Specter stated that the Republican party, "needs somebody to stand up to the President." This is no doubt true, since the issue is unambiguous, flagrant, and goes to the heart of our Constitution. But the democrats, who have no partisan loyalties to defend when assessing this, need to far more.