It’s hard to tell at the moment, but the righties may be retreating from the “what Bush did was within the FISA law” position. There’s one bitter ender here who is ignoring the point that the surveillance allegedly did involve private communications of American citizens. The “we were wrong” thing does come hard to some folks. But although they haven’t raised a white flag, this morning the righties seem to have redeployed to a new battlefield.

Which is: How many senators knew about the surveillance? And if they knew, why didn’t they speak up sooner?

Yesterday the Associated Press reported that Sen. Harry Reid was briefed on the extralegal surveillance “a couple of months ago,” and “whoever disclosed the existence of the surveillance program should be prosecuted.” This rightie blogger jumped in with “Which means that: (1) Reid ADMITS was informed as soon as he took over Dem Senate leadership from Daschle, (as we should expect); and (2) he accepts that the disclosure of this was a crime.”

Reid took over Dem Senate leadership from Daschle nearly a year ago, not a couple of months ago. Maybe the White House briefers were behind schedule. Should the “leaker” be prosecuted? As I understand the law, the liability falls only on people within the government who disclose classified information. I suspect that whoever let the New York Times know what was going on — “Nearly a dozen current and former officials,” according to Risen and Lichtblau — might be in violation of law regarding classified material, and Senator Reid would have been in violation of law had he disclosed it. The New York Times, however, would not be in violation for printing the story. And once the story was public Senator Reid was free to talk about it.

Please note that I don’t claim to be a lawyer. I could be mistaken.

Shakespeare’s Sister reports that some “media analyst” on Fox News said that senators who are now critical of the program were briefed about it before it started. But there seems to be disagreement on this point. Barton Gellman and Dafna Linzer write in yesterday’s Washington Post that

A high-ranking intelligence official with firsthand knowledge said in an interview yesterday that Vice President Cheney, then-Director of Central Intelligence George J. Tenet and Michael V. Hayden, then a lieutenant general and director of the National Security Agency, briefed four key members of Congress about the NSA’s new domestic surveillance on Oct. 25, 2001, and Nov. 14, 2001, shortly after Bush signed a highly classified directive that eliminated some restrictions on eavesdropping against U.S. citizens and permanent residents.

However,

Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers “no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States” — and no mention of the president’s intent to bypass the Foreign Intelligence Surveillance Court.

So we’ve wandered into “he said, she said” territory. Dicey.

Risen and Lichtblau report today that

Secretary of State Condoleezza Rice on Sunday defended President Bush’s decision to secretly authorize the National Security Agency to eavesdrop on Americans without seeking warrants, saying the program was carefully controlled and necessary to close gaps in the nation’s counterterrorism efforts.

In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the “seam” between American intelligence operations overseas and law enforcement agencies at home.

“One of the most compelling outcomes of the 9/11 commission was that a seam had developed,” Ms. Rice said on “Meet the Press” on NBC. “Our intelligence agencies looked out; our law enforcement agencies looked in. And people could – terrorists could – exploit the seam between them.”

The article goes on to quote a number of lawyers and security experts who say they have no idea what Rice was talking about. In an emergency, warrants can be obtained in minutes from the secret FISA court, and can even be obtained after surveillance has begun. Either the Bushies are hiding something, or they just don’t like to mess around with paperwork.