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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.

Wednesday, May 24, 2006

Any differences between Democrats in 2003 and today?

(updated below)

Democrats on the Senate Intelligence Committee yesterday essentially assured that President Bush's nominee to head the CIA, Gen. Michael Hayden, would not only be confirmed by the full Senate, but confirmed overwhelmingly. That's because a majority of the Democratic Committee members (along with, needless to say, all of the Committee Republicans) voted in favor of confirming Gen. Hayden:

The Senate Intelligence Committee strongly endorsed Gen. Michael V. Hayden on Tuesday to be the next director of the Central Intelligence Agency, with all but three members, all Democrats, voting to send General Hayden's nomination to the Senate floor.

The panel's 12-to-3 vote virtually guarantees that General Hayden will win confirmation by the full Senate, which is likely to vote on his selection before the end of the week.

Four committee Democrats joined all eight Republican members in endorsing the general. Senator Pat Roberts, Republican of Kansas and the panel's chairman, called General Hayden "a proven leader and a supremely qualified intelligence professional."

The committee's vice chairman, John D. Rockefeller IV, Democrat of West Virginia, said General Hayden had shown "the necessary independence that is essential to restoring the C.I.A.'s credibility and stature."

Given the similarities, it sounds like Pat Roberts and John Rockefeller drafted their statements together, which is nice. Four Democrats -- Feinstein, Rockefeller, Levin and Mikulski -- voted for Hayden and then praised him lavishly. Three Democrats -- Feingold, Wyden and Bayh -- voted against him.

Although it's hardly surprising, this result is still rather extraordinary. Gen. Hayden ought to have been seen as the most defiant and inflammatory nominee possible for the President to have made. He was, after all, the Director of the NSA at the time it implemented its illegal warrantless eavesdropping program as well as its massive data-collection schemes, and he is a True Believer in the theories of presidential power which hold that the President has the right to violate the law. And he wasn't nominated to be the Agriculture Secretary, but the Director of the CIA -- probably the very worst position you would want someone to occupy with that history of surveillance lawbreaking and that system of beliefs regarding the rule of law.

But no matter. Thanks to the generous and always-accommodating Senate Democrats, this nomination will be trouble-free for the President. This series of events led John Cole yesterday to make this insightful observation:

While I miss not spending as much time reading blogs, writing as many posts, and commenting on other blogs, stepping back from it all has allowed for some clarity regarding the current political system. When I was immersed in blogs, I felt that the Democrats were having some success blocking the current administration, but when I look back, I was just fooled by the current game. The Hayden nomination is a perfect example.

When he was nominated, a few people had fits, a chorus of echoes emerged, and then there appeared to be a popular effort to block his nomination. And then time went by, and now it looks increasingly like he will be confirmed, as everyone has moved on to something else- “Look- a Rabbit!”- as everyone gets all worked up about the FBI raiding Rep. Jefferson’s office or whatever the issue du jour might be.

And if you look back on things, that is how it has been since the beginning of this administration- they do what they want, Democrats throw up an opposition that is of varying degrees of tepidness (did I just make that word up?), a few ‘maverick’ Republicans cross lines (briefly), and then the administration gets what they want.

Rinse and Repeat. . . . In short, while immersed in the blogosphere, you get the feeling that the political climate is changing, but if you step back and look at the big picture, it looks much more like the SSDD.

It is very hard to argue with that. There was already ample grounds for attacking the Hayden nomination when it was announced, and then, right in the middle of it, an all new, highly controversial, likely illegal NSA program was revealed for which he was responsible. But that was barely a speed bump in the harmonious, smooth sailing of his confirmation.

For all the talk of the weakened and impotent presidency and the split among Republicans, it is still virtually always the case that the President gets what he wants, and does so without much difficulty. The few times he fails to -- Harriet Miers, the Dubai Port deal, anti-torture legislation -- is because Republicans, not Democrats, take a stand against the White House.

But by and large, what happened yesterday with Gen. Hayden's nomination is exactly what would have happened in 2002 and 2003. Democrats are afraid to challenge the President due to their fear -- always due to their fear -- that they will be depicted as mean, obstructionist and weak on national security. And so, even with an unbelievably weakened President, and even with regard to the most consequential issues -- and can one doubt that installing Gen. Hayden as CIA Director is consequential? -- Democrats back away from fights, take no clear position, divide against each other, and stand up for exactly nothing.

It is quite possible that Democrats would not have been able to stop Gen. Hayden's nomination. It is true that they are still in the minority and thus are limited in what they can achieve legislatively. But that's really irrelevant. Gen. Hayden is a symbol and one of the chief instruments and advocates of the administration's lawlessness. He refused to say in his testimony even whether he would even comply with the law. Opposing his nomination is both compelled by a principled belief in the rule of law as well as justified by the important political opportunity to highlight this administration's lawbreaking. Sen. Feingold, as usual, shows how this works:

The Democrats who voted against the nomination were Russell D. Feingold of Wisconsin, Ron Wyden of Oregon and Evan Bayh of Indiana. Each cited concerns about General Hayden's role in a controversial domestic surveillance program he ran while head of the National Security Agency.

"I am not convinced that the nominee respects the rule of law and Congress's oversight responsibilities," Mr. Feingold said.

In other words, there are serious questions about whether Gen. Hayden will comply with the law and whether he believes in the rule of law, so perhaps it's not a good idea to install him as CIA Director. Is there some reason Democrats were afraid to make that clear, straightforward, critically important point?

Yet again, Senate Democrats show that they have no more concern for the rule of law and for the excesses of this administration than Senate Republicans do. Due to their really pitiful passivity, they are every bit as much to blame for the excesses and abuses of the administration as the compliant Republicans are.

I've written before that, at least to me, the principal if not exclusive benefit of the Democrats taking over one or both of the Congressional houses in November is that it will impose some checks and limitations on the behavior of the administration and, specifically, will finally result in meaningful investigations into what has happened in our country and to our government over the last five years. But I have serious doubts about whether that would really happen.

After November, 2006, the presidential elections are not far away. The same paralyzing, stagnating, fatally passive Democratic voices who always counsel against standing up to the administration aren't going anywhere. It is not hard to imagine what they will be saying:

President Bush is a lame duck who is out in 2008, and so it doesn't matter what he got away with or what he did. Conducting investigations into these intelligence and ”anti-terrorist” scandals will be depicted as obstructionist and weak on national security, and will jeopardize our chances to re-take the White House and will cost us House and Senate seats. It is best to look forward, not to the past, and not be seen as conducting vendettas against the lame duck President. What matters is taking the White House in 2008 and so there is no reason to attack the President on these matters of the past.

Is there any doubt that the likes of Senators Feinstein, Rockefeller, Levin, etc. are going to follow that thinking, as they always do? I don't see how that can be doubted. I think Congressional Democrats will be more cautious and passive, not less so, if they take over one of the Congressional houses in 2006. People who operate from a place of fear and excess caution become even more timid and fearful when they have something to lose. The Democratic Congressional Chairs are going to be desperate not to lose that newfound power, and they will be very, very vulnerable to the whiny whispers of the consultant class that they should not spend their time and energy investigating this administration or vigorously opposing them on national security matters.

John Cole is absolutely right that Democrats have managed to change virtually nothing as a result of the collapse of the Bush presidency. That's because they think the same and behave the same as they did when they were getting pushed around by Bush as a highly popular “war president.” As a result, there is no reason to believe they will be any better than they are now (and have been for the past four years) if and when they take over one or both Congressional Houses. One could make a compelling case that they will be even worse.

UPDATE: Digby elaborates on several of the issues in this post and, in doing so, says this:

Glenn thinks that here in our blogospheric bubble it appears that things are changing when they aren't. I have to disagree a bit with that. It's true that the blogospheric bubble often gives the false impression that there is more momentum on our side than there actually is. I suspect that true inside any movement or campaign where you spend most of your time with fellow travellers. But that doesn't mean things aren't changing. We are now a factor. They may hate us, fear us and dismiss us, but we're here and we aren't going anywhere. (Say it loud, I'm blog and I'm proud!)

My reference (really, John Cole's reference) to the "blogospheric bubble" was based on the fact that events seem to change more radically than they really do if one is in the blogosphere and closely following every small event. If one read only the blogosphere, one would think that the Bush presidency is devoid of any residual power, but the Democrats' unwillingness to fight against the Hayden nominee illustrates that things have changed far, far less than one might think.

But I agree entirely with Digby about the blogosphere's impact and especially its potential to develop and exert much more influence. In fact, the only reason why I believe that things can change fundamentally is because of new mechanisms like the blogosphere which enable citizens to communicate directly with one another -- and work in concert with one another -- without having to rely upon the corrupt, soul-draining media and Beltway political institutions. If meaningful change is going to occur -- and I believe it will -- it will be because Americans find ways collectively to exert sufficient pressure to demand that they change -- not because our current broken institutions, including the Democratic Party, are suddenly going to be cleansed and transformed on their own.

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