I'm outraged. Why aren't the Democrats in Congress?

Sen. Dick Durbin is quoted by Reuters after his half-hour chat with Gen. Michael Hayden today. If this is a signpost of the road ahead, of how the Democrats will treat the nomination hearings for Hayden, and of their position on the warrantless spying by the NSA, then recalibrate your outrage meter downward. On the face of it, Sen. Durbin appears to be looking to paper over the incommensurable constitutional crisis this program represents.

Sen. Richard Durbin, the Illinois Democrat, said Hayden told him in a private meeting he was concerned when he set up the highly secretive program that approaching Congress could reveal tactics, techniques and procedures used by U.S. intelligence to track al Qaeda suspects.

``He said, however, that with all the publicity that's been surrounding this program, he may be closer to the possibility of asking for a change,'' Durbin, the Democratic whip, told reporters after meeting with Hayden for 35 minutes.

``I hope they do, and I think they're going to find bipartisan cooperation. I want to find a way to make it legal for us to be safe as a nation,'' he added.

This is absurd in so many ways that I hardly know what to make of it.

First, on the question of Hayden's nomination, why are Democrats making nice in advance of hearings? Simply on the tactical level, that is counterproductive to obtaining full and accurate information about a nominee who has been up to his ears in a highly controversial, secret program. He is the very man who put that program in place. What better occasion for extracting information from the administration about that program than at Gen. Hayden's hearings.

Thus far all attempts to expose what the NSA actually is up to, who designed the program, how it has been implemented, who is being spied upon, and why the Bush administration refused to employ the FISA court, have failed spectacularly. The hearing arranged three months ago by Sen. Specter never came close to answering any of the most basic questions. To judge by Specter's increasing frustration, he hasn't made any progress behind the scenes either.

To my mind, that makes the Hayden nomination a golden opportunity to tighten the screws on the administration. Dick Durbin seems to be treating it as an occasion for compromise, a potentially embarrassing scene to be prevented. Bi-partisan cooperation? What in the world is he talking about? Nearly five months have passed since the warrantless spying was exposed, and at no time have the Republicans in Congress shown any willingness to investigate the program in earnest. So what precisely would Democrats and Republicans cooperate towards?

The answer, I fear, is this: "I want to find a way to make it legal for us to be safe as a nation."

Now, why does Sen. Durbin choose to dig the ground out from under himself and the rest of us who care about civil liberties? Did he intend to imply--as he certainly does imply--that the U.S. will not be safe without this specific NSA spying program? And how does he know any details about this program, much less whether it's making the country safe? Or is it warrantless spying that makes us safe as a nation?

I'm puzzled by this. I thought warrantless spying by a secretive and unaccountable Executive is something we need to be made safe from.

Even more puzzling, Durbin as much as admits that the program is not legal. It needs to be made legal, he says.

Why does it need to be made legal? Isn't the first imperative, after determining that a program is illegal, to hold the law breakers accountable?

Why should the opinion of Gen. Hayden about making the program legal be taken into account, anyhow? Hayden has excused himself from any responsibility for having instituted an illegal program by announcing that he's not a lawyer. (The part in the military code making it necessary to refuse to obey an illegal order? It seems that the NSA never intercepted that text, so it never made it's way to the General's desk.)

Here we have General Hayden saying he's now willing to consider the possibility of allowing Congress to have some sort of (undefined) oversight over the NSA spying because the program received publicity. Not because there's any doubt about it's legality.

Here we have General Hayden saying he did not want to discuss the program with Congress when he instituted it because details of the program might become public. Not because there was any doubt ever about whether it was legal.

Where is there room for cooperation, then, Sen. Durbin? Are you proposing to cooperate in helping the President to cover his tracks, by retroactively declaring this program to be...well, if not legal, then off limits to political discussion?

Durbin spokesman Joe Shoemaker said Hayden expressed a willingness to consider legislation that would put the NSA program ``as it exists now'' under federal law.

It appears that Mr. Shoemaker considers that to be a good thing, rather than an absurdity. The NSA program, like all government programs, already is governed by federal law. The problem, as Gen. Hayden doesn't seem to be willing to admit publicly, is that federal law makes the program illegal. Why would anybody sworn to uphold and defend the Constitution want to "put it under federal law"?

Sen. Durbin sounds as if he is snuggling up to Arlen Specter's proposal. As a way to circumvent the constitutional crisis that George Bush has created, rather than confronting it, Specter has proposed to bend and warp the FISA law to the point that it would be possible to claim, more or less seriously, that the NSA spying is being conducted under the law. I have never understood the logic of that proposal. It looks like a climbdown packaged as legislation; noise without sense, motion without progress.

I'm looking at Mister Bush's poll numbers, and it appears he is running on empty. Does Senator Durbin believe that Democrats are nearly out of gas as well? If not, I cannot imagine what he thinks he's doing in this circumstance. My impression is that neither Sen. Durbin, nor Senate Democrats generally, understand that they represent the opposition party. The only way back to power in the Senate is to oppose what is objectionable in the policies of the governing party. If the Bush administration's willingness to violate the letter of the law, and trample all over the Fourth Amendment, is not a powerful club with which to beat the GOP, I don't believe the Democrats will ever find one.

How can Democrats even consider voting to confirm a man to head the CIA who created such a dicey program? A nominee who believes the NSA, of all agencies, is permitted to spy upon Americans without warrant?

Hasn't the NSA as good as admitted that it cannot permit any form of oversight of this program by refusing to allow the Dept. of Justice to investigate it? Congressman Maurice Hinchey thinks so.

Hasn't the Bush administration as good as admitted that it has been lying about this program, by refusing to come clean to Rep. Nancy Pelosi about which members of Congress were (allegedly) briefed about what the NSA was up to?

To be fair to Senator Durbin, he did say that he has not decided whether he'll vote to confirm Hayden. I would like to make a suggestion, while he's still making up his mind: Vote filibuster, and demand that the administration come clean on warrantless spying.