In case you haven’t heard (and I’m pretty sure you haven’t)

Tomorrow, the Senate Judiciary Committee is holding hearings on Feingold’s censure resolution.

According to The Nation, Feingold’s witnesses will be John Dean, who served for Nixon and revealed the high crimes and misdemeanors of the Watergate scandal, and Bruce Fein, who served in Reagan's Dept. of Justice as Deputy Attorney General. Both have been loud critics of Bush’s surveillance activities and both have argued that Bush’s actions are worthy of impeachment. Interestingly, both are republican.

It’s scheduled for 9:30, Friday, March 30, 2006 and I think it’ll be on C-SPAN 2.

Will CNN, MSNBC, and the evening news programs pick this up? Will they give more than 2 minutes of airtime to this story or will they continue their obsessive rants on immigration? (By the way, is anyone else curious why Bush is embracing this immigration debate? What a nice diversion from Feingold and Iraq.)

Can these men testifying tomorrow spark a real debate in the Senate? I don’t think so. After the subsequent vote, it won’t be talked about again and Bush will have officially had his way with the law and the Constitution. And I will be vowing to abstain from voting for any democratic presidential candidate who voted ‘no’ for censure.

Nevertheless, I’ll be reporting on the hearings here.

- Nan

P.s. Carl found this great cartoon

Shunning separation of powers…again

The mainstream press missed a major story on the PATRIOT Act. How did I just hear about this yesterday? And why only in the Boston Globe? It appears that the President included a statement after signing the PATRIOT Act that reflects his interpretation of the law in a manner that is consistent with his justification for the NSA warrantless wiretapping program: based on the President’s constitutional authority, he doesn’t have to inform Congress of the FBI’s activities, despite the law’s requirements to do so. An excerpt of the article:

Bush signed the bill with fanfare at a White House ceremony March 9, calling it ''a piece of legislation that's vital to win the war on terror and to protect the American people." But after the reporters and guests had left, the White House quietly issued a ''signing statement," an official document in which a president lays out his interpretation of a new law.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law's requirements, he could withhold the information if he decided that disclosure would ''impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties."

I continue to be frustrated by the President’s audacious rejection of legislative power based on his interpretation of the Constitution. Given republican control of Congress that is mostly happy to watch him do what he likes and my doubts that democrats will win back the House this fall, I’ve realized that my frustration stems from a threat that goes beyond partisan politics. According to Bush, Congress can make laws, but as long as we’re at “war”, he doesn’t have to follow him. It follows then that as long as there are terrorists in the world, he can do what he wants without oversight. This interpretation is generally regarded as bad legal advice. I think its worse: I think it’s a deliberately bad legal advice—so bad it should be regarded as criminal. My evidence that it’s deliberately bad? Don’t have any. Call it a hunch (and I’m entitled to my hunches).

Generally, arguing executive powers is the job of constitutional scholars and historians. It’s a realm that most of us have little business exploring. But at the root of the argument against the President’s interpretation of executive power during wartime is common sense: even if one defines the War on Terror as justification for special wartime executive powers and even if he should be spying on Americans (assumptions that are highly questionable), the result is simply the creation of bad policy. Constitutional law can be debated, but the result is the deconstruction of a fragile system of checks and balances. Americans benefit immensely from checks and balances. Therefore, this is bad policy because it doesn’t serve Americans.

When we have a president that is only elected every four years, it’s important that we have representatives to speak and act for our interests during that time. That president can make a single decision that does not reflect our best interests. When he does so, the other branches serve as our means to not only resist bad policy but to guide the President in a direction that best steers him to our sense of right and wrong. Without oversight, the President cannot steer with all the tools he has available. While he sees oversight as an obstacle, it can serve in reality as the people’s helm.

And shunning separation of powers is the slipperiest of the slippery slopes. According to his interpretation, he can do anything he deems necessary without telling anyone about it. He can break any law Congress passes or has passed if he can justify that it is necessary to protect Americans (not hard to do when you can’t release the evidence because it is Top Secret). Example: the PATRIOT Act. Having made his justification of the NSA warrantless wiretapping program about wartime powers, he was able to extend his interpretation to the PATRIOT Act. Before he could direct the NSA without oversight; now the Justice Department and FBI can also act without oversight. What’s next? And how will we know what’s next if they don’t have to tell anyone?

To Democrats: SAY SOMETHING!!!

Feingold is the only candidate-to-be who has my vote so far (maybe Edwards, but he doesn't have a loud voice right now while being out of office. And if he did, who knows what he would do with it).

Patience is the strategy for party leadership. Reid, Schumer, Clinton, and others all think that republicans will screw up sufficiently to the point where taking risks would be a mistake.

Here are problems with that approach (as I'm sure you know):

With every minute of silence, democrats allow republicans to shift focus away from their screw ups and towards the empty abyss that is a democratic agenda. What makes this worse is the complete lack of power that democrats have right now to actually shape policy. That is, people don't know what democrats stand for because of their silence and because of their lack of power. This is, in part, why polls show that more people trust republicans with Iraq, national security, and foreign policy. Democrats need to take the opposite approach. It’s a terrible mistake to try to gain power as the default opposition party. Even if they win on this strategy, it’ll make the post-election period extremely difficult for democrats politically because they’ll cause division after people have voted for them, as policy decisions inevitably do. And these divisions will piss off many. And that’ll build resentment and opposition. And that’ll help swing power back to the republicans.

Democrats should have learned by now that hoping that silence will make them appear like the anti-Bush doesn't work. The media called them on it during the 2004 presidential campaign with the help of republicans and they'll do it again. Americans want to see leaders with confidence--not arrogance or blind stubbornness like Bush, but confidence in their principles and ideas. If democrats don't show that they can debate these issues successfully, Americans will remain unconvinced that democrats can lead.

Democrats are taking the easy way out. Because they don't agree on policy within their party, they avoid taking risks and hope that Bush's implosion will suffice. This is a mistake. It leaves just as much room for moderate republicans, who have fewer identity problems, to take the stage. If they continue on this path, democrats will hand the 2008 election over to McCain in a heartbeat. Democrats should embrace their internal diversity. They should sell the notion that in their party, all ideas are heard and talked about...including yours. This may be more important to people right now because this is what's missing in politics today and this is what's missing with Bush's approach to governance.

Finally, if democrats are not on the attack, they are, by definition, under attack. I like Ed Helm's analogy on the Daily Show:

"I got mugged the other day and this bum was beating me with a bottle. And I said, 'You know what? I'm going to sit back and wait for him to accidentally hit himself with the bottle.' Sure enough, he did. I mean, I was unconscious, but I think I won that battle."

Bill Frist: the bane of my existence.

So I was wrong (it happens from time to time). There are Democrats in Congress who are trying to find a way to hold Bush accountable for his careless treatment of intelligence gathering. Russ Feingold (D-Wisconsin), who is running for President and currently is in a dead heat in my book with John Edwards, is seeking a congressional censure (by the way, did you hear Edwards admitted his mistake for having voted to give Bush authority to take military action on Iraq?).

For those of you who remember the Sorkin West Wing days or were alive during Andrew Jackson’s administration, a censure is a resolution that officially wags a congressional finger at the President. It’s not that severe and has no legal implications, but it hurts the administration politically and goes down in the books as an official acknowledgment that Bush screwed up big. Feingold said that, “the president has broken the law, and, in some way, he must be held accountable.” It’s pretty clear that Congress won’t pass the resolution (they’re Republican—at least for now) and Bill Frist (R-Tenn) wants Bush’s support in 2008.

I applaud Feingold for his efforts. This will force republicans to strike down the measure and will allow the Press to talk about how they’re only willing to hold the President accountable when a vast majority of the public is behind them (e.g. the ports deal).

You should read this morning’s short article in the Post for more. Frist’s quotes are disgustingly familiar. We’re right back to the old bullshit: if we show “infighting” then we’re helping the terrorists.

Can we then blame 9/11 and any terrorist action during the Clinton administration entirely on Ken Starr?

The article notes the following response from Frist on implying that holding our own government accountable is treason:

Frist, appearing on ABC's "This Week," said that he hoped al-Qaeda and other U.S. enemies were not listening to the infighting. "The signal that it sends, that there is in any way a lack of support for our commander in chief who is leading us with a bold vision in a way that is making our homeland safer, is wrong.”

If this as simplistically true as Frist makes it sound, then we need to cancel the presidential race right now for 2008, amend the Constitution to allow a third term (or beyond), and let the President reign as King.

A Crackdown on Publishing Leaks

An article published by the Washington Post this morning outlines new measures being taken to investigate and pressure individuals in government and the Press believed to have leaked or published information about classified programs. The author does a great job putting these leaks into historical context, noting that other administrations have dealt with this issue—most responding without prosecution despite acknowledging the problems associated with leaking. I’m sure we can all agree that classifying information is necessary in specific instances. But in a time when we have a government that refuses to hold itself accountable through separation of powers/checks and balances and when people are scared of shaking the roster of players in government to the point of paralysis because of the constant barrage of terrorist threats and misleading information, what other measure of oversight do we have? If the administration and the intelligence community want to reduce leaks, we first need a self-disciplining government and electoral playing field that encourages fair democratic action—and we have neither.

When Mr. Tice leaked the secret NSA surveillance program to the New York Times and informed Congress of his concerns in 2003, he had hoped that action would be taken to stop the program which he believed to be unconstitutional. He wasn’t leaking the program for political reasons—unlike the motivation behind Executive Branch leaks (in fact, Tice voted for Bush and claims to be a long-time conservative). Rather, he simply believed the program was illegal and felt that his reports to Congress, which are legal under the Intelligence Community Whistleblower Protection Act, would fall on apathetic ears—a belief that was unsurprisingly correct. The Justice Department (which means Bush) quickly announced an investigation into the NSA program leak only after it had been published in the New York Times over one year later. Why not when they found out about the leak a year prior to the publication? Why not a silent investigation? They wanted to pressure other employees and the Press with strength of public outrage over treason-like leaking behind them. Fortunately, the public seems to be unconvinced that leaking the information was wrong.

By leaking the story, the Press was made aware of a legally questionable program that would have otherwise remained secret. If not leaked, the program could easily have escalated into something far more intrusive and illegal because Congress had no means or desire to act with oversight. Indeed, even after knowledge of the program spread to Congress and the public and general concern about civil liberties sparked intense debate across party lines, most of Congress was still reticent to take real action to even suspend the warrantless searches, let alone stop them altogether. Does this justify illegal acts by government employees (leaking classified information is illegal according to The Espionage Act)? Yes, because the purpose of encouraging whistleblowers is undermined because Congress is sympathetic only to policies advertised within the guise of Bush’s antiterrorism frames, and these dissenting employees have no internal credibility to curb illegal policy within their agencies.

What other choice do they have other than to exercise their First Amendment rights? Does the claim that the program is necessary for preventing terrorism—a dubious claim—and that the program must remain secret to be effective provide ample reason to counteract justification for public knowledge of the program? Even if we give Bush the benefit of the doubt on this one, this claim still fails to justify punishing employees or journalist who feel they are protecting Americans MORE by informing them of government actions that may, and probably are, illegal.

Once again, the onslaught of threats via investigations by a heavy handed Executive Branch and selective cooperation from the intelligence community (if only similar energy were put into other matters that actually do relate to national defense) have put pressure on the Press and government whistleblowers in a way that smacks of autocracy.

I’ll say it again: I’d rather reveal a questionable program—even if it is vital for national defense to keep it secret—than to have our constitutional tools (i.e., separation of powers/checks and balances) quietly violated by an administration with a widely acknowledged unwillingness for honesty, accuracy, and fairness.

Given the behavior and motivations of this administration, I say that federal employees and journalists should subscribe to the following: if in doubt, you must speak out. The time for cautiousness is over. If not, we'll soon find ourselves realizing that we've lost the liberties that we're supposedly trying to protect.