Monday, March 13, 2006

Censure Bush Now. Russ Feingold for President.

Updated thrice

Russ Feingold has taken yet another courageous (courageous for the Senate) stand. Who will stand with him? Lieberman? Biden? Specter? Rockefeller? Hagel? Snowe?

Russ has demonstrated, yet again, that he is one of the few Democratic Party national leaders who is actually willing to LEAD. Check out his comments on his motion to censure the President for the illegal domestic spying program that the President has admitted and that the President has vowed to continue:

WASHINGTON Dec 17, 2005 -- President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.
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"The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.
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"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.

There is literally no rational legal or constitutional justification for the program: FISA makes illegal what Bush has "authorized." Congress has acted and made illegal what he is doing; the President's power to act in contravention is at its lowest ebb. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Not only that, but it is apparent that the program that Bush and Attorney General Gonzalez have acknowledged is NOT the only illegal program, and the legal rationales that he has asserted could apply to almost any conceivable illegal, unconstitutional behavior--so long as it is related in some fashion to "war." Obviously, these rationales make Congressional (i.e. McCain's) legislation purportedly restricting the President's power to torture transient, ephemeral, and a farce. The Patriot Act's "updates" of FISA are meaningless charade. Why should *any* of the Fourth Amendment (or the Article I) of the Constitution have any more sway over the President's newly-discovered powers as "Commander in Chief" of the military?

When the President asserts unchecked executive authority merely because we are in a "time of war," and the time of war at issue is the loosely-defined and mostly-unbounded "War on Terra," this Republic--which relies by design on checked and balanced power, on ambition counteracting ambition--is in deep, deep trouble. See Federalist #51 (Publius). As Publius (most likely Madison) explains:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
. . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
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If a majority be united by a common interest, the rights of the minority will be insecure.
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In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Congressional inaction in the face of such blatant law-breaking would surely set a precedent, and fundamentally change the nature of the Republic and the relative powers of the supposedly co-equal branches.

Bold, prescient Democratic leadership has been in increasingly short supply for the past four and a half years. Feingold was the sole dissenter when the Patriot Act was passed in a rush of uncritical passion almost immediately after 9/11. He was one of 23 who opposed the Iraq War Resolution. He fought the Patriot Act's reauthorization. He pounded Gonzalez in the Judiciary Committee hearings on his confirmation and again on the NSA wiretapping. He was one of the first (and still one of the only) Senators to demand a timetable on Iraq. He took the initiative in creating the campaign finance law that bears his name. Feingold leads:

Senators have a chance to be leaders every time they have to choose between voting in the best interests of the nation and voting for what is more popular, among Congress or among the country at large. And when faced with those votes Senator Feingold has always chosen to be a leader.

This warrantless wiretapping program must not be allowed to be enshrined as "thats just the way things are." At some point, the Congress must stick up for itself, its powers, its co-equal role in the Republic. It must learn to say no. The President must learn his bounds.

It is time for a leader who is willing to stick his neck out to do the right thing and take the unpopular position (even though opposition to the NSA spying is smart wedge politics and now the majority position). Somebody willing to call a spade a spade. Somebody who won't have to fall over themself explaining why they were bullied or shamed or intimidated into supporting an offensive war launched for shady reasons and justified by shady arguments.

Its time for censure.

Its time for Feingold.


Well well well, apparently our good friend Arlen Specter ("Republican") of Pennsylvania, is now claiming that FISA is unconstitutional. This is the man who only weeks ago said:

Well, I think that it's a very powerful statement when the president--Carter at the time--signed [the Presidential signing statement on FISA], and, uh, said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercized it by passing the law, and the president submitted to it.

Now there's an involved question here, Tim, which we're going to get into in some depth, as to whether the president's powers under Article II--his inherent powers--supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the Constitutional powers predominate.

But here you have the president signing on and saying "this is it", and that's why I've been so skeptical of the [NSA wiretap] program because it is in flat violation of the Foreign Intelligence Surveillance Act--but that's not the end of the discussion.

There you have it. Although the President was, is, and will continue to be in "flat violation" of the FISA law until the last terrorist on Earth is dead or captured (or until Senators Roberts and Lieberman draft legislation purporting to make the whole program legal after the fact), which was duly enacted by Congress and signed into law by the President, Specter is willing to declare Congress impotent on matters of national security. Remind me what Article I, Section 8 says again? Oh yeah, this:
Section 8 - Powers of Congress

The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Yeah, it sure looks like Congress has no role to play in regulating war, warfare or the President's decisions to eavesdrop in the United States during a time of war.

Give me a break.

Updated again

Noted without comment:
Sen. Joe Lieberman (Conn.) said he would prefer to "solve the problem" rather than scold the president.
. . .
"Some Democrats in Congress have decided the president is the enemy," Cheney said, according to the Associated Press. The crowd booed, and Cheney urged them on.
. . .
Senate Majority Leader Bill Frist (R-Tenn.) accused Feingold of making a "crazy political move" and using "cheap political tricks" that threaten U.S. security by "sending a dangerous signal of disunity around the globe."

See also:
But Sen. Joe Lieberman, D- Conn., voiced some misgivings and hinted that he’d vote no on the Feingold resolution.

“Frankly I’d prefer to spend our time on figuring out ways to bring this very important program of surveillance of potential terrorists here in the United States under the law…. I disagree with the Bush administration’s legal judgment on this one…. But this is a critically important program to the prevention of terrorist acts here in the United States.”

One more update

It looks like Lieberman is being as consistently strong on the Rule of Law as ever. As noted by Digby, "Yes. Joe doesn't believe in scolding presidents does he?":
The implications for our country are so serious that I feel a responsibility to my constituents in Connecticut, as well as to my conscience, to voice my concerns forthrightly and publicly. And I can think of no more appropriate place to do that than on this great Senate floor.
. . .
To begin with, I must respectfully disagree with the president's contention that his relationship with Monica Lewinsky and the way in which he misled us about it is nobody's business but his family's and that even presidents have private lives, as he said.
. . .
But there is more to this than modern media intrusiveness. The president is not just the elected leader of our country. He is as presidential scholar Clinton Rossiter (ph) observed, and I quote, "the one man distillation of the American people." And as President Taft said at another time, "the personal embodiment and representative of their dignity and majesty."
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In this case, the president apparently had extramarital relations with an employee half his age and did so in the workplace in the vicinity of the Oval Office. Such behavior is not just inappropriate. It is immoral...
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The president's intentional and consistent statements, more deeply, may also undercut the trust that the American people have in his word. Under the Constitution, as presidential scholar Newsted (ph) has noted, the president's ultimate source of authority, particularly his moral authority, is the power to persuade, to mobilize public opinion, to build consensus behind a common agenda. And at this, the president has been extraordinarily effective.

But that power hinges on the president's support among the American people and their faith and confidence in his motivations and agenda, yes; but also in his word.

As Teddy Roosevelt once explained, "My power vanishes into thin air the instant that my fellow citizens, who are straight and honest, cease to believe that I represent them and fight for what is straight and honest. That is all the strength that I have," Roosevelt said.

Sadly, with his deception, President Clinton may have weakened the great power and strength that he possesses, of which President Roosevelt spoke.
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Mr. President, I said at the outset that this was a very difficult statement to write and deliver. That is true, very true. And it is true in large part because it is so personal and yet needs to be public, but also because of my fear that it will appear unnecessarily judgmental. I truly regret this.
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But the president, by virtue of the office he sought and was elected to, has traditionally been held to a higher standard. This is as it should be because the American president, as I quoted earlier, is not just the one man distillation of the American people, but today the most powerful person in the world. And as such, the consequences of his misbehavior, even private misbehavior, are much greater than that of an average citizen, a CEO or even a Senator.

That's what I believe presidential scholar James David Barber (ph) in his book "The Presidential Character" was getting at when he wrote that the public demands quote, "a sense of legitimacy from and in the presidency. There is more to this than dignity -- more than propriety. The president is expected to personify our betterness in an inspiring way; to express in what he does and is, not just what he says, a moral idealism which in much of the public mind is the very opposite of politics."
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. . . the transgressions the president has admitted to are too consequential for us to walk away and leave the impression for our children today and for our posterity tomorrow that what he acknowledges he did within the White House is acceptable behavior for our nation's leader. On the contrary, as I have said, it is wrong and unacceptable and should be followed by some measure of public rebuke and accountability.
. . .
Let us as a nation honestly confront the damage that the president's actions over the last seven months have caused, but not to the exclusion of the good that his leadership has done over the past six years, nor at the expense of our common interest as Americans. And let us be guided by the conscience of the Constitution, which calls on us to place the common good above any partisan or personal interest, as we now in our time work together to resolve this serious challenge to our democracy.

I thank the chair. I thank my colleagues. And I yield the floor.

Digby again: "Man, to hear him talk you would have thought the president had blatantly defied the law and illegally spied on American citizens without a warrant or something."

C'mon Joe (and the rest of you; you know who I'm talking about), its not too late to get on the right side of this issue. Its not unpatriotic to stand up for the Constitution, to defend the powers and privileges of that great deliberative institution, the United States Senate, and to honor your oath of office.

"And for you naysayers, I have two strong words for you: c'mon! C'mon!"


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