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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, March 14, 2006

Censure Resolution goes to Judiciary Committee; Democrats turn on Feingold

(updated below)

Thersites at Vichy Dems has some great analysis about this AP article, which reports that Feingold's Censure Resolution has been referred to Arlen Specter's Senate Judiciary Committee for a vote. And Thersites also reports, based on this Raw Story article, that numerous Democrats are anonymously and rather petulantly attacking Feingold for having introduced the resolution -- the single most important and courageous act I can recall from a Senator in a long time -- because they are afraid (as always) that Republicans will use it to attack them as weak on national security and depict them as being best friends with The Terrorists.

If these Democrats are afraid of a 34% dying Presidency, what aren't they afraid of? The good news is that Feingold seems as willing to stand up to these frightened Democrats as he is to take a stand in defense of our country's principles from the Bush Administration's relentless assault on those principles:

"I look forward to a full hearing, debate and vote in committee on this important matter," Feingold, D-Wis., said in a statement. "If the committee fails to consider the resolution expeditiously, I will ask that there be a vote in the full Senate" . . . .

Feingold, defending his censure plan today on Fox News, said: "I’m amazed at Democrats, cowering with this president’s numbers so low. The administration just has to raise the specter of the war and the Democrats run and hide…too many Democrats are going to do the same thing they did in 2000 and 2004. In the face of this, they’ll say we’d better just focus on domestic issues…[Democrats shouldn’t] cower to the argument, that whatever you do, if you question administration, you’re helping the terrorists."

Russ Feingold is definitely the most unpopular person in Washington right about now, which is an enormous compliment. He is making Republicans extremely uncomfortable by keeping the spotlight on the fact that the President broke the law right at the moment when most people in Congress from both parties had tacitly agreed to look the other way and forget the whole thing ever happened. And he's making most Senate Democrats even more uncomfortable because he's not allowing them to quietly crawl away from the President's law-breaking without taking a position one way or the other as to whether they condemn that behavior.

No matter what else he achieves, Feingold has singled-handedly catapulted this story back to the top of the news cycle, where it belongs. Despite itself, the Senate spent the last two days forced to debate the President's law-breaking. And now the Senate Judiciary Committee has another live matter relating to the NSA scandal in front of it, making it that much more difficult for the whole thing to just fade away or for Specter and company to just sweep the whole thing under the rug. Clearly, Feingold isn't going to let it just fade away. And anyone who cares about the rule of law and maintaining the basic principles of our system of government ought to have as a top priority supporting him in that effort.

It is truly amazing, but not at all surprising, that Democrats are doing Karl Rove's dirty work by swarming around and anonymously attacking Russ Feingold. But he doesn't seem to care. He seems to care a lot more about defending the principles for which he's taken a stand than allowing national politicians in Washington to proceed comfortably along with their standard self-protective games. That, of course, is exactly why he's the most unpopular person in Washington.

And, at bottom, what this whole episode illustrates, yet again, is that if Democrats want to be perceived as strong, and if they want to lose the albatross of being pereceived as weak, what they have to do is extremely simple and clear -- stop being weak and be strong. Who appears stronger and more resolute right now -- Russ Feingold, or the Democrats scurrying around in the dark, afraid of their own shadows and petrified of standing up to a weakened President who got caught breaking the law?

UPDATE: A regular commenter at FireDogLake (which, by the way, is now up and running at its new location, emancipated from Blogspot), Professor Foland, reported this:

Just got off the phone after about 15 minutes with a staffer in Kennedy’s office (in Boston.) Mon dieu. Very frustrating. And this is Kennedy.

Hit absolutely the wall. Kennedy won’t support or oppose, wants a Congressional investigation. Yes, sure, facts are not in dispute, but the Senator will not take a position on the censure resolution until the investigation is complete. Yes, sure, law not really in dispute. But the Senator will not take a position on the censure resolution until the investigation is complete. Yes, sure, FBI has dropped all pretenses in monitoring political groups within the US. But the Senator is not going to issue a statement in support.

Yes, it makes it difficult for people who are outspoken to stand alone. Yes it makes the party look fractured on an important issue. But the Senator is not going to issue a statement until investigations are complete. No, of course we understand the investigations are going to be run by Republican Senators. But the Senator is not going to issue a statement until investigations are complete.

Sadly, after carefully stressing the words "the Senator", the staffer kept saying, "I think you can tell where I stand." And I could. What a mess.

I've heard reports of similar incoherence and indecision emanating from several other Democratic Senators' offices, including several who occupy very safe seats in very blue states. The preferred tool of eavsion which they're using is the claim that they need "more facts" before they can know if the President broke the law.

It should go without saying that they have all the facts they need to conclude definitively that the President broke the law. Bush himself admits that he ordered eavesdropping on Americans without the judicial oversight and approval required by the law the Congress passed in 1978. There are no factual disputes about that. Even the Administration doesn't deny any of the facts necessary to establish that they broke the law.

A factual investigation into the NSA program would certainly be nice -- in order, for instance, to find out if there are other illegal eavesdropping progams which we do not yet know about, and/or to find out how the eavesdropping power was used (something we don't know because the eavesdropping was done in secret, exactly what the law criminalizes). But no investigation is necessary to conclude that the law was broken because the law makes it a criminal offense to eavesdrop on Americans without judicial approval and that - by the Administration's own (proud) admission - is exactly what they did.

And beyond all of that, there isn't going to be an investigation, so it borders on the surreal for these Senators to say that they want to wait until the investigation is complete. The reason there isn't going to be an investigation is because the President's allies voted against it. That just happened last week, and yet Democratic Senators literally seem either not to have heard about that event or to have forgotten that it happened, because they keep saying that they want to wait for the investigation to be complete -- the same investigation that is not going to occur.

As astonishing as it is -- and I know that it shouldn't be astonishing, but it still is -- very few of these Senators are going to take any steps on their own to support Feingold's resolution. They won't unless the public demands that they do something. And Sen. Feingold has created the opportunity for the public to do that.

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