The Censure Hearings

Earlier this week a series of federal judges from the secret FISA court testified to the Judiciary Committee about the NSA's domestic spying program. They all seemed to agree with Chairman Specter's belief that they needed judicial oversight (which typically takes the form of warrants) over the controversial program. This would suggest that they believe that the President is overstepping Constitutional authority by seeking the wiretaps without a warrant or judicial review, as deemed necessary by statute. That would mean that the President is breaking the law.

Today the same Senate Judicary Committee is holding hearings on Future President Feingold's call for censure over the program. For the first time since 1974, at the height of Watergate, John Dean testified on Capitol Hill. I had the pleasure of hearing Dean speak a couple years ago, and have read his prodigious work on this subject before. He was again eloquent today.

"To me, this is not really and should not be a partisan question," Dean told the panel. "I think it's a question of institutional pride of this body, of the Congress of the United States."

He added in prepared testimony that if Congress doesn't have the stomach for Feingold's resolution as drafted, it should pass some measure serving Bush a warning.

"The resolution should be amended, not defeated, because the president needs to be reminded that separation of powers does not mean an isolation of powers," Dean said in prepared remarks. "He needs to be told he cannot simply ignore a law with no consequences."

All the Republicans on the committee could do was cry politics. Feingold and Dean preferred to talk about the good of the nation and the restoration of Constitutional authority over the executive branch. I, of course, find that to be the stronger argument. Here's Dean on the wiretapping and why lawbreaking was probably not even required:

There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.

Indeed, here, Bush may have outdone Nixon: Nixon's illegal surveillance was limited; Bush's, it is developing, may be extraordinarily broad in scope. First reports indicated that NSA was only monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls were being covered at any given time. But later reports have suggested that NSA is "data mining" literally millions of calls - and has been given access by the telecommunications companies to "switching" stations through which foreign communications traffic flows.

In sum, this is big-time, Big Brother electronic surveillance [...]

No one questions the ends here. No one doubts another terror attack is coming; it is only a question of when. No one questions the preeminent importance of detecting and preventing such an attack.

What is at issue here, instead, is Bush's means of achieving his ends: his decision not only to bypass Congress, but to violate the law it had already established in this area.

Congress is Republican-controlled. Polling shows that a large majority of Americans are willing to give up their civil liberties to prevent another terror attack. The USA Patriot Act passed with overwhelming support. So why didn't the President simply ask Congress for the authority he thought he needed?

The answer seems to be, quite simply, that Vice President Dick Cheney has never recovered from being President Ford's chief of staff when Congress placed checks on the presidency. And Cheney wanted to make the point that he thought it was within a president's power to ignore Congress' laws relating to the exercise of executive power. Bush has gone along with all such Cheney plans.

Just because an offense is impeachable doesn't mean you should impeach. And there's going to be literally years of information requests and stonewalling and claims of national security that will forestall any further understanding of just what the President has done here. But what's out there now at the very least demands censure, for the sake of the credibility of the United States Congress. That's what's at stake, and in this long process I think eventually the American people will understand that in growing numbers. Already a majority favor it in at least one poll.

I'll end with this quote from the end of Dean's FindLaw column, and it's extremely important:

I was delighted that Professor (David) Cole closed his real-world analysis on a very realistic note: "Michael Ignatieff has written that 'it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.' (Justice Department lawyer and architect of the legal underpinnings for the policy John) Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing."

That's so fabulous and stirring that I ought to print it again. What we're talking about it whether we have a true constitutional democracy or a shadow play. The issue is that crucial.

P.S. Absolutely disgusting that most of the Democratic Senators didn't even bother to show up to this hearing. Sen. Kennedy is engrossed in the immigration debate that was happening concurrently, but the others have little excuse. They continue to run and hide, and we the people continue to pay the price with Republican Administrations that break the law with impunity. Thanks, guys.