Justice Samuel Alito: 58 to 42.

Justice Alito has been sworn in to replace Sandra Day O'Connor in the John McKinley seat. Mister Americano is well pleased at this turn of events.

Pleased that the Democratic Senators on the Judiciary Committee showed themselves to be bullies. Pleased at the smackdowns given by Senators Arlen Specter and Lindsey Graham. Pleased to see Senator Edward Kennedy's blustering nonsense during the floor debates. Watching the senior senator from Massachussetts was like watching a wooly mammoth bellow and struggle in a tar pit. All that's left is the fossilization.

And finally, especially pleased that there were 42 votes against Alito, enough to uphold a filibuster if only the Democratic Senators were as crazy as their leftie base.

Now Democrats are left to hope that Alito's decisions are as extreme as they fear and the voters will elect more Democrats in the Congress and a Democrat as President. A loser's consolation. A lifetime appointment in the hand is better than the hope of winning elections in the future.

It is better to win.

Or as Conan the Barbarian put it when asked what is best in life:

"To crush your enemies, see them driven before you, and to hear the lamentations of the woman!"

-tdr

Jack Bauer's Going Problem. A Growing Problem?

In last night's episode of 24 Jack Bauer didn't kill anybody. He came close to putting somebody's eye out, but he didn't kill anybody. Perhaps because he
was always going. All night he was telling the women he loves "i'm sorry, but i have to go."

He really had a going problem. Does he have a bladder? Did he drink too much coffee? Or does he have a growing problem? There's medication for that now. (Here.)

-tdr

Crusades, Crusades, Crusades.

Al Zawahiri's use of the term "Crusaders" to refer to American soldiers does not simply illustrate an unfortunately long historical memory. We in the United States tend to think of the war on terror as beginning on 9/11, or at most, sometime in the last 25 to 30 years. Perhaps when Iran took Americans hostage in 1979. But Al Qaeda views this war as just the latest phase in a conflict between Islam and non-believers that stretches back to the Middle Ages.

To Zawahiri, the Crusades were fought by Moslems to drive Christian invaders from Moslem lands. He is fighting the current war for the same reason. What he forgets is that Christendom fought the Crusades to take back the Holy Land from Moslem conquerors. The Middle East was Christian before it was Moslem. If the West were to take the same long view of this war as Zawahiri, we would be justified in seeking to take back the Middle East for Christianity. After all, Christians were there first.

Is that really how Zawahiri wants us to view this war?

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Another Videotape From The Middle Ages.

So Al-Zawahiri has released a video tape to prove he survived the American attack in Pakistan. The transcript of his video is available at CNN (here) and is worth reading in full.

Reading Zawahiri's words is like reading a message from another century. He starts by referring to the failed attack by "the Jews and the Crusaders." Is there any doubt that he and his followers are anti-semitic to their core? The failed attack was made by the United States of America, not by Jews. American soldiers are not Crusaders either. The Crusades ended a millenium ago and they ended with a Muslim victory over the forces of Christendom.

Americans are often mocked for being historically ignorant. We do have short memories in the United States. But when Zawahiri refers back a thousand years to the Crusades to taunt America for an attack in the 21st Century, a short historical memory doesn't seem like such a bad thing. Perhaps the world would be better off if more people in it suffered from the historical amnesia that afflicts Americans.

And then there are these passages:

"Bush, you failed crusader, know that we are the nation of monotheism, which believes that no one is greater than God. He sent us a prophet and a book that was never edited like the other books before it. A
unique book that defies anyone to come up with anything like it.

"I will meet my death when God wishes. But if my time hasn't come, you and all the Earth's forces can't change it, not even by a second.

"Bush, do you know where I am? I am among the Muslim masses enjoying their care with God's blessings and sharing with them their holy war against you until we defeat you, God willing."

Our government goes out of its way to praise Islam and to make it clear that we are not fighting a religious war against Moslems. Al Qaeda though is fighting a religious war against us. America's religious tolerance leads us to credit all religions as having validity. Not Zawahiri's though. In his view Islam is the only true religion that is based on the unedited words of God. Can there be any question how badly non-Moslems would fare if Zawahiri and his jihadists were to win?

There can be no truce or negotiated end to this war. Either Al Qaeda will win or we will. We will have won when Al Qaeda and its philosophy are thought of in the Moslem world the way that Naziism is thought of in the West. When we can safely laugh at people who say the sort of things that Zawahiri says in his videotape, the way we can safely laugh at Nazis, then we'll know we have won. Nazis today are a joke. When Al Qaeda jihadists are a joke, then we'll know we have won. That won't happen any time soon. This is a long ideological war. Our troops are going to be over there for a long time. America needs to come to terms with that.

-tdr

Apologizing To Iran On Behalf Of The United States

Osama bin Laden's recent endorsement of Rogue State author William Blum suggested that if only the United States would apologize and make amends for its actions in the world, terrorists would stop attacking the US.

If that's all it takes, here's Mister Americano's apology on behalf of the USA to the Iranian people, whose government supports international terrorism.

We're sorry for our part in helping the Ayatollah Khomeni return to Iran. We're sorry that once the nature of his regime became apparent we did not support an Iranian military coup. We're sorry that we stood by helplessly in 1979 and then attempted a weak rescue attempt of the American hostages held in Iran, instead of declaring war on the Iranian theocracy and overthrowing that regime. We're sorry that we elected Jimmy Carter. We're sorry that George W. Bush wasn't old enough to be President at the time. We're sorry that we stopped after liberating your neighbors in Afghanistan and Iraq instead of moving on to liberate your country. We're sorry that we've done so little to support the Iranian democratic opposition in their efforts to free themselves from tyranny.

We hope we still have the opportunity to make it up to you. And we hope that once you are no longer under the thumbs of the clerics, you find it in your hearts to forgive us for not helping you sooner.

-tdr

No Talking In The Middle East

Among the first statements to come out of the Middle East after the victory of Hamas in the Palestinian elections were these reported by the BBC and MSNBC:

Another Hamas official, Mushir al-Masri, warned that Hamas would not hold peace talks with Israel.
"Negotiations with Israel is not on our agenda," he said. "Recognising Israel is not on the agenda either now."

“The state of Israel will not negotiate with a Palestinian administration if even part of it is an armed terrorist organization calling for the destruction of the state of Israel,” [acting Prime Minister Ehud] Olmert said in a statement issued after an emergency meeting with senior Cabinet ministers, including Defense Minister Shaul Mofaz and acting Foreign Minister Tzipi Livni.

They have that in common at least. Not that talking would do much good. How do you talk to somebody who is committed to your destruction? The victory by Hamas shows that Israel is right to disengage from the Palestinians and to set its own borders unilaterally. What may not have been clear to others before the Palestinian election now must be crystal clear. There is no peace process and there is no hope of peace between Israel and Palestine in the near term.

What with the situation in Iran and now Palestine, the year 2006 is looking to be an even bloodier year than the first 5 years of the 21st Century. Things are going to get worse before they get better.

-tdr

Bush Decreed, Millions Freed.

In the bumper sticker world of American politics "Bush Decreed, Millions Freed" is the best answer to "Bush lied, thousands died." And this exchange between the President and an Iraqi Kurdish woman about the liberation of Iraq is priceless (here):

"Q Hello, Mr. President. I am an American Iraqi Kurd. I would like to salute you and salute all the troops are freeing 27 million people. They are free. (Applause.)

THE PRESIDENT: Thank you.

Q Mr. President, I would like to share this thought with all our nation and everybody who is questioning what happened to the chemical weapons. Saddam burned 4,500 villagers. I lost more than 10 members of my family under the ground. We found their bones after, when we freed Iraq. Saddam, himself, and his people, his followers, they are chemical weapons. Please stop questioning the administration and their decision. It was the best decision anybody could take. Freeing 27 million people. (Applause.)

THE PRESIDENT: Okay, this is a question and answer period.

Q Mr. President --

THE PRESIDENT: I hate to cut you off. You're on a roll, but what's the question?

Q Mr. President, all I could tell you, I have two members of my family, they are in the Iraqi parliament. And both of them are women. My sister-in-law and my aunt, they are in the Iraqi parliament. And I would like you to share this happiness with me and with all the Iraqi people. Thank you, Mr. President. (Applause.)

THE PRESIDENT: Thank you. And here's my message -- here's my message to your relatives in the Iraqi parliament: Work to form a unity government, a government that includes the minorities in the country -- a Shia, Kurd, and Sunni -- no, no, no -- (laughter) -- no, no. (Laughter.) Thank you -- laughter.)

Q My husband is Sunni. My mother-in-law was a Christian, Catholic --

THE PRESIDENT: All right -- (laughter.)

Q I have two kids --

THE PRESIDENT: Thank you. Got a question? Only in America. Hold on. (Laughter.)"

Since September 11, 2001, when the forces of fascism hit the American mainland, our country, under President Bush's leadership has overturned a theocratic fascist regime and a secular fascist regime. What most critics of our government's liberation strategy fail to grasp is that overturning fascist dictatorships is a root-causes approach to fighting terrorism. Dictatorships create terrorists and terrorists rely on dictatorships for their support. Freeing millions is fighting terrorism.

Whatever errors the United States made before liberating Iraq and during the occupation, we owe no apologies to anybody for deposing Saddam and midwifing a new democracy in Iraq.

-tdr

Would Turnabout Be Fair Play?

Al Jazeera is reporting bomb blasts in southwestern Iran have killed four. (Here.) The Iranian government is blaming the British for fomenting unrest in the region. Talk about the pot calling the kettle black.

Iran is fighting a proxy war against the United States in Iraq. Their little proxy, Muqtada Al-Sadr, has just pledged to use his Mahdi Army to protect Iran against foreign attack. (Here.) If Iran stays on its present course Al-Sadr might have the chance to follow through on his word.

-tdr

Let Us Count The Ways Jack Bauer Kills Bad Guys.

It's only the fifth hour of Jack Bauer's day and already he's killed people with a gun, a knife, a cellphone, and, now, a pair of surgical scissors. He's a regular MacGyver of death.

-tdr

An Armed Populace Does Not Guarantee Liberty.

The Second Amendment protects an individual's right to bear arms. It's one of the freedoms guaranteed to Americans in the Bill of Rights. Taken together the first 10 Amendments help to define the liberties we enjoy here in America and to delimit the powers of the government.

One of the claims of Second Amendment supporters is that an armed populace is a check on the government's ability to become a dictatorship. In that view the Second Amendment is an essential protector of the other liberties. Until 2003, Iraq's government was as repressive a dictatorship as any. Yet its population was armed. (Here.)

Clearly something more than an armed population is needed to protect liberty and to keep a government from becoming a dictatorship.

-tdr

Bin Laden's Truce Offer

It's hard to understand why some are interpreting Osama Bin Laden's speech as encouragement to his followers. It seems clear that the speech is intended for the American audience. His message to us is that America is losing and that if we want to be safe from attack, all we need do is withdraw from Iraq and Afghanistan. It's his attempt to feed the "if we leave them alone they'll leave us alone" strain of American thinking on terrorism.

It will be interesting to see if it gains traction.

-tdr

Catholic Intelligence On The Universe's Design.

The Roman Catholic Church must be confusing for the secular modern. Regressive on issues of personal choice, yet progressive on many social justice issues. Now the Church has spoken on the Intelligent Design versus Evolution debate and come down on the side of the evolution.

An article in the Vatican newspaper says that Intelligent Design is not science and lays out a sensible position for people of faith as reported here.

The author Fiorenzi "Facchini wrote that scientists could not rule out a divine 'superior design' to creation and the history of mankind. But he said Catholic thought did not preclude a design fashioned through an evolutionary process.

'God's project of creation can be carried out through secondary causes in the natural course of events, without having to think of miraculous interventions that point in this or that direction,' he wrote.

'In a vision that goes beyond the empirical horizon, we can say that we aren't men by chance or by necessity, and that the human experience has a sense and a direction signaled by a superior design.'

The popular view of Catholicism's relationship with science is skewed by the Church's ill treatment of Galileo centuries ago. But the Church has come a long way since then and has come to terms with science and modernity in ways that some Protestant sects still haven't and never will. Those Protestant sects that view the Bible as word for word true will always have a problem reconciling the world with the Bible.

Mister Americano has never respected the approach to the Bible that maintains each word is literally true, in no small part because it diminishes the Bible. Under that approach, while God may have blessed human authors with the skills of using metaphor, allegory, mythmaking, storytelling, etc. in their writing, God apparently can do no more than write literal descriptions of what happened. Catholic tradition rejects this approach. The Church's more intellectual and sophisticated approach to scripture enables it to adjust to new scientific discoveries more readily. And that enables the Church to be more at home in the modern world.

-tdr

Shane Returns From The Frontier As Jack Bauer Returns To TV In 24 Hours.

Fox's great TV spy show 24 starts a fifth season Sunday and Monday. (Here.) Fans of the show know that Keifer Sutherland's Jack Bauer is a counter-terrorism agent who will go to whatever lengths are necessary to protect the United States from a terrorist attack. In 4 seasons we've seen him break just about every law governing law enforcement and the rest of us including the cold-blooded killing of a prisoner to give himself "street cred" with a terrorist group.

Last season the rule of law was starting to catch up with Bauer and the season ended Shane-like, with Bauer walking off into the sun away from civilization. (See Mister Americano's take here.)

In the real war on terror, the political environment has started to close in on counter-terrorists. Four years without another terrorist attack in the homeland and 3 years of revanchist attacks by terrorists in Iraq against American liberators has emboldened civil libertarians to push back and to threaten our ability to fight the terror war.

It will be interesting to see how the writers of 24 portray the changed political mood as Agent Bauer returns to the fight to keep his fictional America safe from terrorist attack.

-tdr

The Other Hero Of Wednesday's Alito Hearing: Senator Lindsey Graham

Senator Lindsey Graham, like Senator Specter, did heroic work during the Senate Judiciary Committee hearing on Judge Samuel Alito. Neither Senator is known for excessive Republican partisanship but Wednesday both came through for their party in a big way. Specter with his smackdown of Ted Kennedy and Graham with his eloquent and emotional defense of Judge Alito.

After listening to days of Democratic Senatorial thuggery directed at the nominee, Senator Graham stuck it to them by stating explicitly what the Democrats had been insinuating in their questions about the Concerned Alumni of Princeton.

"GRAHAM: If you don't mind the suspicious nature that I have is that you may be saying that because you want to get on the Supreme Court; that you're disavowing this now because it doesn't look good.

And really what I would look at to believe you're not -- and I'm going to be very honest with you -- is: How have you lived your life? Are you really a closet bigot?

ALITO: I'm not any kind of a bigot, I'm not.

GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it -- but that's a good enough reason, because you seem to be a decent, honorable man. I have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes.

Judge Higginbotham -- I don't know where they're at. But glowing quotes about who you are, the way you've lived your life; law clerks, men and women, black and white, your colleagues who say that Sam Alito, whether I agree with him or not, is a really good man.

You know why I believe you when you say that you disavow those quotes? Because the way you have lived your life and the way you and your wife are raising your children.

Let me tell you this: Guilt by association is going to drive good men and women away from wanting to sit where you're sitting. And we're going to go through a bit of this ourselves as congressmen and senators.

People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, "Aha, I got you!"

And we're going to say, "Wait a minute. I didn't know that. I didn't take the money for that reason."

And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken.

But that doesn't mean that you're a bad person because of that association.

Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this."

And then Graham made a persuasive plea for moving beyond abortion politics in judicial nominations. Here's what Graham had to say after describing Justice Ginsberg's strong advocacy of legal abortion before her appointment to the Supreme Court.

"I don't question her religion. I don't question her patriotism. She gave an answer that was very honest and was very direct.

And pro-life Republicans and pro-life Democrats never thought about disqualifying her. She didn't go through what you went through. Pro-life Republicans and pro-life
Democrats set her comment aside and judged her based on her whole record and believed she was worthy to sit on the Supreme Court and she got 96 votes.

And what you've said in your writings about the other side of the issue pales in comparison to what she said before she came to this body. I don't know how many votes
you're going to get. You're going to get confirmed. And it's not going to be 96. Judge Roberts got 78, and I'm afraid to say that you're probably going to get less.

To my colleagues, I know abortion is important. It's important to me. It's important to you. I know it's an important, central concept in our jurisprudence. But we can't build a judiciary around that one issue.

We can't make judges pledge allegiance to one case. We can't expect them to do things that would destroy their independence. You can vote yes; you can vote no; you can use any reason you would like.

I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate.

People set aside her writings, set aside her candid statement and gave her the benefit of the doubt that she would apply the law when her time came. She replaced Justice White.

We knew that that vote was going to change. I don't think any Republican had any doubt that, if there was a Roe v. Wade issue, she would vote differently than Justice White. But you never know.

The one thing I can tell the public about you and John Roberts is that you're first round NFL draft picks, but I don't know what you're going to do 10 or 20 years from now because I think you are men of great integrity.

And I may be very well disappointed in some of your legal reasoning, but I'll never be disappointed in you if you do your job as you see fit."

Senator Graham is right. Abortion politics has perverted America's judicial selection process by making the process bitterly partisan. It has even led abortion supporters to start down a path of religious bigotry by questioning whether devout Catholics or Evangelicals can fulfill their duty to uphold the constitution if appointed to the court. The monomania with Roe v. Wade has reduced every judicial nomination to a question of whether the candidate will uphold or overturn the case and has led to the types of hearings we have in which judges do their best to keep from being caught by "gotcha" questions. Whether the candidate will be a good judge and be able to handle the type of complex cases runs a distant second to ferreting out the candidate's position on abortion. The sooner we move beyond abortion politics in judicial nominations the better.

-tdr

Arlen Specter Smackdown Of Ted Kennedy Was A Joy To Behold.

Mister Americano has never been a fan of the RINO Senator from Pennsylvania, Arlen Specter. But the Senator is a hero today for his smackdown of Ted Kennedy's bullying tactics in the Judge Samuel Alito hearings.

"SPECTER: Well, don't be premature, Senator Kennedy. I'm not about to make a ruling on this state of the record.

I hope you won't mind if I consider it, and I hope you won't mind if I give you the specifics that there was no letter which I received.

I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that.

We're going to move on now.

Senator Grassley...

KENNEDY: Mr. Chairman, I'd appeal the ruling of the chair on this.

SPECTER: There has been no ruling of the chair, Senator Kennedy.

KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.

And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution.

I think it's...

SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again. And I'm the chairman of this committee and I have heard your request and I will consider it.

And I'm not going to have you run this committee and decide when we're going to go into executive session.

We are in the middle of a round of hearings. This is the first time you have personally called it to my attention, and this is the first time that I have focused on it. And I will consider in due course.

Now we'll move to Senator Grassley for 20 minutes."

The Washington Post has the transcript here. Scroll down a bit and enjoy.

-tdr

Our Cruel And Counter-Productive Cuban Refugee Policy

Today the United States government returned 15 refugees from political oppression to the dictatorship from which they fled. (Here.) But few in our country will care because it's just Cubans being sent back to Fidel Castro's dictatorship.

Roughly, America's policy is to admit Cuban refugees who reach US soil but return those we intercept on the sea. The policy is designed to discourage Cubans from fleeing their country.

Our Cuban refugee policy is counter-productive to America's desire for Fidel Castro's government to fall. The Eastern European communist countries fell soon after the borders were wide open and refugees flooded out of their countries into their free European neighbors. When the people of a dicatatorship realize they can easily flee, they do, and the regime soon falls afterwards.

Rather than patrolling international waters to catch and return Cubans to Castro's prisons, we should be patrolling there to rescue refugees and bring them to the US. We should be encouraging the flight of as many Cubans as possible and we should be assisting them.

-tdr

We're All Beneath The Law

Back when President Bill Clinton was under the legal gun Lanny Davis used to go on television and defend him. He'd argue for fairness by saying something like, "the President is not above the law but he's not below the law either." And people would accept the statement as if he had just said something profound.

Mister Americano could never quite figure it out. Okay, nobody is above the law, that's clear enough. In other words, even Presidents have to obey the law. But to obey the law would require that the law be above the President. So the President would have to be below the law. But if Davis believed that Clinton was not above or below the law then where was he? At the same level of the law? Outside the law? Maybe Davis believed Clinton was like Sly Stallone's Judge Dredd, who famously said, "I am the law!" (Here and here.)

Well, now Judge Samuel Alito has used pretty much the same Davis catch phrase in his opening statement before the Senate Judiciary Committee today. When promising to administer equal justice fairly to all, the judge said, "No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law." (Here.)

This is just plain wrong. In our country everybody and everything is beneath the law. That's what it means to live in a country that exists under the rule of law. What Davis and Alito mean to say is that for equal justice to be administered fairly nobody should be outside the law. (Well, maybe UN and other diplomats living here are outside the law with that annoying diplomatic immunity they have. "What do you mean I can't park my limo here? I work for the UN. I don't have to obey your puny laws.")

It's merely a semantic point, perhaps, but words matter.

-tdr

Is The NSA Cross-Border Wiretapping Reasonable?

Contrary to what many apparently believe warrantless searches are not unconsitutional. The Fourth Amendment (here) reads,

"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."

The Constitutional question underlying the President's decision to authorize the National Security Agency to secretly monitor cross-border electronic communications therefore is not whether a warrant was issued but whether the monitoring was reasonable. Judicial oversight is not required by the constitution before the executive does some kind of search of a person, place or thing.

This does not mean that the judiciary never gets involved in warrantless searches. The courts get involved after the fact when the government tries to use the evidence obtained from the search in a criminal proceeding.

For instance, if a person is arrested as a result of the secret monitoring, that person might be able to challenge the evidence obtained as a result of the tap in court. The question for that person would be whether the particular wiretap was reasonable. The court system would give the accused an opportunity to vindicate his own personal right of privacy. If a court determined that the tap violated the accused's reasonable expectation of privacy, the evidence from the wiretap could be suppressed. But if the court decided that the tap was reasonable and didn't require issuance of a warrant, the evidence could be used in a criminal trial.

But there are some instances where the wiretap would not be subject to judicial scrutiny of any kind.

If the tapped person is not arrested and the information derived from the tap leads to the arrest of somebody else, that somebody else would not be able to challenge the secret tap, because the tap didn't affect his own reasonable expectation of privacy.

Or if nobody is arrested as a result of the tap and the information obtained from the surveillance is never used, there would be no need for a judge to review the reasonableness of the monitoring.

For the individual subject to a particular search the question concerns whether the particular surveillance was reasonable. Given the state of the law on the President's power to do this kind of monitoring during a war (see here, here, here, here, for arguments on that issue) and the reduced expectation of privacy an individual has in making an international communication, it is possible that the surveillance would be constitutional.

And while some may believe that we are not in a war, we are. Arguably we are in a congressionally declared war against Al Qaeda. The authorization to use force against Al Qaeda may not have been termed a formal declaration of war, but the Constitution does not prescribe what the formal requirements are for a declaration of war. Arguably a Congressional vote that authorizes the President to use military force against a foreign enemy is a declaration of war. That would include the authorization to use force against Iraq.

A broader constitutional question for the Congress and the voters, is whether the NSA monitoring program is reasonable. The question then is whether it is reasonable for the President to have authorized the NSA to do this monitoring on the scale it was done, in secret, while notifying some Congressmembers but under an oath of secrecy, which it would be criminal to violate, in a time of war. That's an entirely different question, that under our system, would not be up to the courts to decide.

Congress could address it through legislation that makes clear its view that this kind of surveillance is unconstitutional and that outlaws it. Congress could also address it through impeachment proceedings against the President on the ground that it believes the President violated the Constitution. Neither of these events is likely to happen given the partisan makeup of the Congress.

Thus, it falls to the voters to decide whether they view the President's actions as unconstitutional. If the voters believe the President has violated the constitution, it is up to them to vote into office Congressmembers who would promise to go after the President for this and impeach him or who would promise to outlaw this kind of surveillance or to bring it under some other kind of independent oversight.

When one remembers that the reason the jihadists were able to attack us on 9/11 was almost entirely because of a failure of intelligence, it seems pretty unlikely that either the Congress or the voters will go after the President very strongly on this issue. There will be a lot of hand waving and shouting during Congressional hearings but ultimately nothing much will come of it. The only real consequence is that whereas before the New York Times spilled the beans on this in order to kill the Patriot Act the jihadists may have suspected that the US government was monitoring their calls into and out of America, now they know it for certain. That can't be good for the good guys in this war.

-tdr