Does the White House NSA defense come from John Mitchell?

(updated below - updated again - and again)

Among the witnesses testifying at the Senate Judiciary Committee hearing today on Sen. Feingold's Censure Resolution is former Nixon White House Counsel John Dean. Dean has frequently compared the abuses of the Bush Administration generally to those of the Nixon Administration, and has specifically compared the illegal eavesdropping activities of the two Administrations.

While we know that the eavesdropping ordered by President Bush is exactly the eavesdropping which FISA makes it a criminal offense to engage in, we do not yet know -- thanks to the frenzied efforts of Bush defenders to suppress any and all investigations into the Administration's eavesdropping activities -- the nature and extent of Bush's warrantless eavesdropping program. We do not, for instance, know which Americans were eavesdropped on, how many Americans were subject to this illegal surveillance, how it was determined who would be eavesdropped on, what was done with the information, whether purely innocent Americans had their communications intercepted without judicial approval, etc.

The White House has repeatedly assured us that there is no reason for us to know any of this, and there is nothing for us to worry about, because they are eavesdropping only -- to use a The White House's formulation -- on the "very bad people."

In that regard, John Dean is an excellent witness for the hearings today, since he was part of an Administration which invoked exactly the same rationale. According to this July 25, 1969 article from Time Magazine, which was reporting on public fears over new surveillance powers given to the Administration by the Congress, Nixon's Attorney General John Mitchell told Americans they had nothing to worry about:

During his presidential campaign, Richard Nixon said that he would take full advantage of the new law-a promise that raised fears of a massive invasion of privacy. To calm those fears, the Administration last week issued what amounted to an official statement on the subject.

In his first news conference since becoming the President's chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. "Any citizen of this United States who is not involved in some illegal activity," he added, "has nothing to fear whatsoever."

Because all of this was before FISA, the Nixon Administration was able to exercise their eavesdropping powers on Americans in secret, without any oversight of any kind -- just like the Bush Administration has been doing even in the face of FISA. We all know how well that worked out. It was the shocking abuses of those powers by not just the Nixon Administration, but by the Kennedy and Johnson Justice Departments as well -- all which were revealed only as part of the Church Committee's investigation -- that led to the enactment of FISA, since the country no longer trusted political officials to exercise eavesdropping powers on Americans in secret and with no oversight.

It is rather striking how the White House's defense of its activities -- and its explanation for why there need not be any Congressional investigation into its actions ("you shouldn't worry"; we are only eavesdropping on the "very bad people") -- is virtually identical, both in substance and in words, to the assurances given to us on the same topic by the Nixon Administration. John Dean is an extremely appropriate witness at these hearings in so many ways.

UPDATE: As commenters here pointed out (I didn't see it), Sen. Feingold read from parts of this post at the Censure Resolution hearing this morning (and, courteously, credited this blog) when he was questioning John Dean. He specifically asked him about the Mitchell quote.

To see the video excerpt of that exchange, click here, then click on

Senate Judiciary Hearing on the Censure President Bush.

You can watch the whole hearings there. The exchange where Feingold quotes from this post begins at 2:41:55. (UPDATE - C&L has now posted the video clip here).

UPDATE II: I will be on Air America's Majority Report with Janeane Garafalo at 9:22 pm EST tonight to talk about the hearings. That was scheduled a few days ago. You can listen to the live audio feed or see the station list here.

UPDATE III: C&L has now posted the video clip of the Feingold-Dean exchange.

What would the Founders say?

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GUEST POST - By Hume's Ghost
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When I first discovered Glenn's blog I was impressed by the way Glenn so easily cuts through the legal b.s. that is put forth by the administration in defense of its actions and provides clear and concise explanations as to why the reasoning offered by the administration is insufficient. But there is a problem: clear and concise reasoning is not getting through to the public at large. The reason is that Republicans, led by Karl Rove, have found a way around reason and rational discussion - fear. They have exploited fear shamlessly since 9/11 in order to short-cut and bypass democratic discourse.

Thankfully, however, we have a resource at our disposal that Karl Rove can not hope to counter. What we have is the universal reverence that all Americans share for the Founding Fathers and the founding principles of this nation. If we can tap into that, then perhaps we can wake the slumbering spirit of democracy in this nation. For while people may lack the attention to be swayed by legalistic arguments, they are unlikely to remain ambivalent if they are made to realize that our government is being run by men to whom the concepts of democracy are alien or anathema.

Let's start with George Bush.

Does anyone think the President has ever read The Federalist or remembers doing so? Do you believe his actions are in any way informed by reading America's first and (in my opinion) greatest patriot Thomas Paine? Has he read the letters of Jefferson and Adams? If you asked the President who wrote Memorial and Remonstrance, aren't you certain he would be clueless? And to suggest that the President would be familiar with writings that informed the Fathers - Locke, Montesquieu, Spinoza, Voltaire, etc - can't even be taken seriously.

See? It's easy. At every turn I find that the administration is answered by the Founders.

The White House suggests the New York Times is guilty of treason for revealing that the President authorized warrantless surveillance of American citizens.

In "A Dissertation on the Canon and Feudal Law" (1765) John Adams responds:

[L]iberty cannot be preserved without a general knowledge among the people, who have a right ... to knowledge ... and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees ...

The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

And if the public interest, liberty, and happiness have been in danger from the ambition or avarice of any great man, whatever may be his politeness, address, learning, ingenuity, and, in other respects, integrity and humanity, you have done yourselves honor and your country service by publishing and pointing out that avarice and ambition. These vices are so much the more dangerous and pernicious for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against.

"Curse on such virtues, they've undone their country."

Be not intimidated, therefore, by any terrors, from publishing with the utmost freedom, whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice.

The White House asserts that its war powers are without bounds.

James Madison answers in Federalist #47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The President claims violating FISA was necessary for national defense and that he is thus justified for acting unilaterally.

George Washington, in his Farewell Address (1796) disagrees:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

We are told that we are being paranoid for worrying about "phantom" liberties being lost.

In "Memorial and Remonstrance" (1785), James Madison tell us:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution.

We are told that terrorists do not have rights.

Thomas Paine in Dissertation on the First Prinicples of Government (1795) advises:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

We are told we should trust that the President will not abuse the unchecked powers he claims to have.

Thomas Jefferson tells us, in " Bill for a More General Diffusion of Knowledge" (1778) :

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

Jefferson reiterates and expands on this sentiment in the "Kentucky Resolutions" (1798):

[F]ree government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go ... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

And John Adams, writing in his Notes for an Oration at Baintree (1772) adds:

There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.

Several days after a Senate Judiciary Committee hearing into the nature of the NSA surveillance program begins Bush announces that a 9/11 style attack on LA was prevented in 2002.

James Madison, anticipating this tactic wrote in 1798 to Thomas Jefferson:

Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.

We are repeatedly told we are in a war, and that we will be at war indefinitely.

In the Federalist #8 Alexander Hamilton recognized that external threats can erode liberty:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

Then, perhaps anticipating the fear-mongering that would be done by this administration Hamilton continued:

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil.

The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

The administration claims that the provisions of FISA are a burden, that it needed to violate FISA to protect us.

Thomas Jefferson writing to Archibald Stuart in 1791 answered:

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

The President asks for a military budget that in 2007 will exceed average spending from during the Cold War, despite our enemy no longer being a rival superpower, but instead being men that hijack planes with box cutters.

George Washington, America's first General and first President, upon leaving office told us:

[O]ver grown military establishments are under any form of government inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.

Most recently, Senator Patrick Roberts, redefining patriotism as cowardice, tells us "You don't have civil liberties if you're dead."

The ghost of Patrick Henry, returning from the great beyond to answer the wounded call of Lady Liberty cried out:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

These are just a few examples. But is there any doubt that the course that this administration has set is a radical departure from the vision for American that the Founding Fathers had?

Yet I know and understand how frustrating fighting for what is right can be. Thomas Paine had something to say to us as well, in Common Sense (1776):

Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour; a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.

What the FISA judges really said

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By Anonymous Liberal

(updated below)
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Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, reported:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense. One small problem: the article is complete and utter rubbish. Even some of Bush's chief apologists sensed something was amiss; a New York Times article by Eric Lichtblau provided an entirely different account of the hearing.

Five former judges on the nation's most secretive court, including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order.

They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

But both Hinderaker and Goldstein were pretty sure that the transcript, which neither of them had read, would vindicate DeBose and embarrass Lichtblau.

I've now read through the transcript, and not surprisingly, it's clear that Lichtblau was awake during the hearing and DeBose was, well, very confused.

He's not the only one, though. Hindrocket now claims to have read through the transcript as well and has cranked out a post entitled "Verdict: The New York Times Blew the Story." He claims that the New York Times "badly misled its readers" and that the Washington Times story "was fair, but arguably overstated."

Okay, let's review the facts. The transcript of the hearing--which is very long--is only available via subscription, so you're going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program ("we will not be testifying today with regard to the present program implemented by President Bush"). The judges were there to testify about FISA and about the merits of Sen. Specter's proposed legislation to amend FISA.

The bulk of the testimony by the judges was in praise of FISA and in praise of Specter's proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.

Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they'd undoubtedly prefer something along the lines of Specter's bill, which would at least require the court to approve surveillance on a program-wide level.

I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.

As for Lichtblau's article, the line that seems to have provoked the strongest reaction from the right-wing blogs is his statement that "several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order." John Hinderaker says that this sentence "is simply wrong" and that he "can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting." Steven Spruiell of the NRO Media Blog echoes this sentiment: "the transcript I read indicates that the exact opposite is true."

Well, maybe I can help them out. Though the judges were very diplomatic in their choice of words, there is still plenty of support for Lichtblau's statement in the transcript. For instance, Judge Robertson's written testimony (which Specter read aloud) states: "Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way."

Judge Brotman said:

FISA has worked and worked well. It is a necessary court and its orders reflect the balance to which I have made reference. It has no ax to grind, this court. Judicial review provides confidence to the citizens of our country to know that a court has looked on what is being sought. Times change. Methodology changes. Equipment changes.

Processes change. All these things can be and should be accommodated with the FISA Court.

Judge Stafford said:

As I approach my 75th birthday, it remains my belief that our nation is really held together by a couple pieces of paper -- the Declaration of Independence and the Constitution -- and the belief of the American people that our system of government works. FISA was created by Congress to clarify that the president had the authority to conduct foreign intelligence surveillance, but that the president would do so through a court composed of judges who had been nominated for lifetime appointments by a president and confirmed by the Senate as provided in Article III of the Constitution. This arrangement seems to have worked well for everyone.

The testimony of Magistrate Judge Allan Kornblum, whom Hinderaker and DeBose quote extensively, was a bit hard to follow, but even he said some things that support Lichtblau's assertion:

The presidential authority that is being used today is being used unilaterally. I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions.

This is, of course, the holding of Youngstown and a principle which Hinderaker has refused to acknowledge as being relevant to this issue. Kornblum explains further:

But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks -- when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch's authority is at its maximum. What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.

This is as clear a statement as any that the president cannot simply do whatever he feels is necessary, regardless of what the law says. Earlier in his testimony, Kornblum observed:

I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully
enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

And:

I would also reiterate that the president doesn't have a carte blanche, that the courts are the arm of government that determines what the president's constitutional authority is.

One last thing before I go. In reading through the transcript, I noticed that Sen. Specter opened the proceedings by telling the panel:

Before you begin your testimony, it is our practice to swear in witnesses, so I'd ask you all to rise.

So now it's the committee's practice, huh? Funny how things change.

UPDATE (by Glenn): As I point out in my Comment here, the claims by The Washington Times, predictably parroted by Powerline and company, are based on several transparent myths that one can believe only if one has a complete lack of understanding as to how our system of government works.

Intellectually bankrupt Bush apologists have long been propagating the myth that once it's established that the President would have a certain power in the absence of a Congressional statute (such as the power to engage in warrantless eavesdropping for foreign intelligence purposes), then it necessarily means that the power can never be limited by Congress. But our entire system of government -- and the entire point of Youngstown -- is that a President may have the right to act in a certain area in the absence of a Congressional statute, but once Congress regulates in that area, then the President can't exercise that power in a way that violates the law.

Anyone who says: "the President has the right to do X under the Constitution and therefore Congress can never regulate it" just has no idea how our system of Government works.

No need to take my word for it. Attorney General Alberto Gonzales even explained these basic precepts -- slowly enough so that they should be understood by everyone -- when he testified before the Judiciary Committee:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

Let's repeat what Gonzales said for those unwilling or -- in the case of Powerline -- unable to process it: "the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area."

That's 8th Grade civics. The three branches of Government share responsibility for the functions of Government. So the fact that the President can engage in surveillance to defend the Nation doesn't mean that Congress can't regulate how that power is used against American citizens on American soil. FISA was in place and adhered to by every Presidential Administration - Carter, Reagan, Bush 41, Clinton. Nobody ever suggested it was unconstitutional -- including the Bush Administration -- until they got caught violating it and needed an excuse.

Moreover, these judges who testified made as clear as they could make it that they were not there to testify as to the legality of the NSA program. Anyone who thinks they did does not understand how the judiciary works.

Judges don't run around freely opining on legal disputes. And these judges weren't purporting to do that, as they made clear. What they did instead was what judges do in these circumstances - spout general propositions of law which, in this case, as A.L. demonstrated, support the conclusion that the President does not have the right to violate the law.

Various matters

(1) Marty Lederman has some interesting thoughts on the testimony yesterday of former Bush Justice Department official David Kris. Video excerpts of Kris' testimony can be seen here.

(2) Marty's co-blogger, Jack Balkin, has posted a thorough analysis of the Hamdan Oral Argument before the Supreme Court yesterday.

(3) It turns out that the editor of Ramesh Ponnuru's new book, Party of Death, is none other than serial plagiarist Ben Domenech (Digby has an incisive and rather hilarious analysis of Ponnuru's new book here).

The striking aspect of this story, among others, is that Ponnuru defended Domenech in The Corner at the height of the controversy over Domenech's selection as a WashingtonPost.com blogger without disclosing his personal relationship to Domenech, misleading his readers into believing that he was commenting objectively on the anti-Domenech accusations. I explained my thinking on this blatant conflict of interest -- the nondisclosure of which is indisputably unethical -- in an e-mail to Jane Hamsher, who has been covering the Ponnuru-Domenech relationship and wrote about the issue, including my e-mail, here.

(4) The L.A. Times article which reported on the identity of Ponnuru's editor is highly worth reading, as it provides a compelling antidote against the increasingly accepted premise that the blogosphere is filled with crazed, irresponsible, fringe radicals who are free of substance and ought to be ignored. As the article demonstrates, in the Domenech case (as is frequently the case), the blogosphere performed an invaluable function of uncovering what WashingtonPost.com ought to have discovered but failed to -- namely, the serial plagiarism of its new paid blogger.

As I have written about before (and wish I could write more about right now), so much of the resentment towards the blogosphere and the accusations of "irresponsibility" come from establishment journalists who have grown accustomed to being unchallenged and never being held accountable. They deeply resent the accountability which the blogosphere presents, and ironically, the accusations of irresponsibility against the blogosphere grow in proportion to the blogosphere's effectiveness in exposing the corruption and error which underlies so much of what the establishment media does. It is refreshing and encouraging -- as well as, I believe, a sign of what is to come much more frequently -- to see the substance and value of the blogosphere recognized in a newspaper like The Los Angeles Times.

(5) Scott "Big Trunk" Johnson, in a post entitled "Put Out More Flags," links approvingly to Mickey Kaus' protests over the display of Mexican flags at the immigration rally in California last week, and Kaus' related protest over the downplaying of this information by the Los Angeles Times. There have been many similar objections raised concerning the presence of Mexican flags at these rallies -- including, notably, by Big Trunk himself, who objected the day after the rally to the waving of the Mexican flag by a march participant and said: "I can't think of many things more likely to increase support for enforcing existing immigration law than the march of the illegals that took place in Los Angeles."

But there is one thing I couldn't help but notice -- that is, right next to Johnson's posts, and on the front page of Powerline, is an American flag, and right under it is an Israeli flag. I've never heard any of the people who protested the display of the Mexican flag object to that, and Johnson himself, who seems to find it objectionable to display the Mexican flag, seems to think it's perfectly appropriate to fly the Israeli flag.

Is there really some meaningful, rational distinction that can be drawn beteween these two acts? On what possible basis can one condemn the waving of a Mexican flag in the U.S. but think that it's pefectly appropriate and unobjectionable to wave the flag of some other country, such as Israel? Once a year, at least in Manhattan, there is an event called the "Israel Day Parade," in which tens of thousands of people parade through Manhattan waiving Israeli flags. Here's a representative picture of what it looks like:















How come Big Trunk, Michelle Malkin, and Mickey Kaus aren't objecting to that? Just to be clear - I am not arguing that it's proper to display Mexican flags or improper to display Israeli flags. I just don't see the rationale -- at all -- that would allow people such as Big Trunk to object to one while not only approving of, but engaging in, the other.

This Week in the NSA Scandal

As you can likely already tell, my blogging this week is going to be light. It appears I'm now in the "things-are-very-serious" stage of producing this book, where editors yell and become all nervous if you're not constantly cranking out new material like a good, focused workhorse. Fortunately, I have had superb guest posts courtesy of A.L. and Hypatia and hope to have some more soon. Until then, a few quick notes:

(1) The Senate Judiciary Committee is holding hearings again today on the NSA scandal. One can watch them live on C-SPAN here. The morning panel is composed of four federal judges. From the bits and pieces I've subjected myself to thus far, it appears that their purpose is to heap praise on Sen. Specter's "new legislation" and drone on about how the Constitution clearly allows Congress to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause showings.

The afternoon panel ought to be much more instructive and interesting. It includes Morton Halperin, currently with the Center for American Progress and formerly with the ACLU, whose telephones were tapped under the Nixon Administration, something which was discovered only by the Church Committee.

The other panelist is David Kris, formerly with the Bush Justice Department (and now with Time Warner). Kris testified in front of the Judiciary Committee in 2002 regarding FISA and made what appear to be false statements about the Administration's eavesdropping activities, likely because he was not advised of the illegal eavesdropping the President had ordered. He also, as Marty Lederman recently discussed, authored very strong memoranda which were highly critical of the Administration's "legal justifications" for eavesdropping in violation of FISA.

(2) It is still early in the year, but I am quite confident that these statements from Sen. Carl Levin, which he made this weekend on FOX with Chris Wallace, will end up at the very top of the list of Most Infuriating Statements of the Year once we are at the end of 2006:

WALLACE: Well, let me ask you, just to press this a little bit further, one of your colleagues on this subcommittee, a Democratic colleague, Senator Diane Feinstein, came out afterwards and said that she thought it was a very impressive program and didn't have a contrary word to say about it.

LEVIN: Well, she has, obviously — she feels comfortable saying what she wants to say about her briefing. I don't want to say anything about the way this program operates or reach any conclusion until my briefings are concluded.

But then again, I hope to be able to find a way that I can either look people in the eye and say this program is one where there is probable cause of the precise type that the president assured the nation.

That to me is critical. Then if there is probable cause to believe that these people who are engaged in these conversations are Al Qaeda-connected agents or members, then the question is is it legal, or do you have to modify the law in order to make it legal.

WALLACE: But there's a political reality in this, too, as I don't have to tell you. Do Democrats want to be in the position of investigating the president for possible censure, a president in the middle of wartime, over a program that, at least according to some people who have been briefed on it, including a Democrat, does a good job in protecting the American people?

LEVIN: No, I think it's premature to reach any conclusion about censure, and I would first put the inquiries before you reach any conclusion.

WALLACE: Do you think it was helpful to even raise the idea?

LEVIN: No, I think to say that you should censure the president before you have had the inquiries is premature, so I don't think it's helpful to reach that conclusion at this point.

The whole interview is like that. I just picked the worst of it. Carl Levin obviously believes that it is perfectly acceptable for the President to break the law just as long as it turns out that his illegal conduct is driven by good intentions. To Sen. Levin, this is what the NSA scandal is about:

the question is is it legal, or do you have to modify the law in order to make it legal.

If it turns out that they were not abusing the eavesdropping power, then it is perfectly fine with Sen. Levin if the President broke the law. If the President broke the law, then the duty of the Senate is to "modify the law in order to make it legal" because, after all, the President broke the law for the "right reasons." As Daniel Webster warned: "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."

It is truly astonishing to watch politician after politician -- Republican and Democrat alike - parade forward and expressly say that there may be nothing wrong with the President having eavesdropped on Americans in violation of the law.

Really - what American can grow up in this country and think that way? If it had been the case that the President merely broke the law on, say, September 13, 2001 for a few days as an emergency measure until the law could be quickly changed, that would be one thing. The lawbreaking would be wrong, but it would be a different matter altogether. Here, the President has been breaking the law for four years, deliberately and consciously. And Sen. Levin thinks that when that gets revealed, the solution is to figure out how to make the President's illegal conduct become legal.

So much for the rule of law. In the world of Sen. Levin, the new principle is: "If you think you're doing good, feel free to break the law." That isn't hyperbole or interpretation. That is really what he's saying.

(3) The Judiciary Committee, as you probably already know, is holding hearings on Friday on Sen. Feingold's censure resolution. Christy at FDL is coordinating blogosphere action for Friday.

The fictitious Kyl/Graham "floor debate"

By Anonymous Liberal


Today the Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfeld. The Court will be called upon to determine--among other things--whether a provision in last year's Detainee Treatment Act ("DTA") effectively strips the Court of jurisdiction to hear Hamdan's case. The Government contends that it does and in support of this position, Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court.

This amicus brief argues that the legislative history of the DTA supports the Government's position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill. In the exchange, both Kyl and Graham suggest that the bill will strip the courts of jurisdiction over pending detainee cases such as Hamdan. But here's where the story gets interesting.

Apparently this entire 8 page colloquy--which is scripted to read as if it were delivered live on the floor of the Senate, complete with random interruptions from other Senators--never took place. It was inserted into the Congressional Record in written form just prior to passage of the bill.

Lyle Denniston at SCOTUSblog--who appears to have been the first to pick up on this juicy story last Thursday--noted that the authenticity of the floor debate was disputed by Hamdan's attorneys in their reply to the Government's brief. Hamdan's attorneys pointed out that the C-SPAN footage for Dec. 21, 2005--the date this debate supposedly took place--shows no sign of Senators Kyl or Graham (or, for that matter, the other Senators who appear in the record).

Emily Bazelon at Slate--citing "Senate officials"--confirms that the entire colloquy was inserted, not delivered live. Bazelon writes:

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly non-standard is implying to the Supreme Court that testimony was live when it wasn't.

But that's exactly what Graham and Kyl appear to have done in their brief. In response to the contention by Hamdan's attorneys that the legislative history is meaningless because it was inserted into the record without debate, the brief states the following:

[T]he Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet, indicating "statements or insertions which are not spoken by a Member of the Senate on the floor," or are
underlined, indicating that they are "words inserted or appended, rather than spoken, by a Member of the House on the floor."

And guess what, there's no bullet or underlining in the relevant part of the Congressional Record. The Kyl/Graham amicus brief also quotes various lines from the colloquy as evidence that it took place prior to the passage of the bill. It quotes Sen. Graham as saying: "I want our colleagues to know exactly what they will be agreeing to" (emphasis in original).

Bazelon even catches Senator Brownback's office in an apparent lie. Brownback makes a cameo in the scripted dialogue, asking if he "might interrupt" and ask a question. Bazelon writes:

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

Now I realize that the Congressional Record is often not what it appears to be. Much of it is inserted at the last second. And even when statements are delivered live, there are often no other senators in the chamber. But this particular episode appears to go well beyond the normal charade.

What we have are two Senators falsely suggesting--to the highest court in the land--that an imaginary dialogue inserted in the Congressional Record was in fact a live floor debate which reveals the definitive intent of Congress. If all this is true--and it certainly appears to be--Senators Kyl and Graham have some explaining to do.

Prison & the War on Drugs: Just Say No

GUEST POST - by Hypatia (with contributions from Pete Guither)

Whenever the offence inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.

- Edward Gibbon: The Decline and Fall of the Roman Empire


And so if people are violating the law by doing drugs, they ought to be accused and they ought to be convicted and they ought to be sent up…too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too.

- Rush Limbaugh, October 5, 1995

While the War on Terror (or "The Long War") preoccupies the nation, there's another war on an abstract noun ("The Other Long War") that continues to be fought against Americans: The War on Drugs. That war’s central weapon is prison, but the enemy is not the select substances on which the war is ostensibly declared. Rather, the guns are aimed at -- often enough, literally -- every citizen who acts as if the individual, as opposed to the state, should be deciding what to put into his or her body. The human costs of this “war” on citizens have been incalculable, primarily because of prison.

While the United States constitutes 5% of the world's population, this “land of the free” holds 25% of the world's prisoners – a third to a half are there for drug offenses . With all the talk of Guantanamo and extraordinary rendition, many overlook that we have a Gulag Prison System here at home, fueled by our drug laws.

Most Americans seldom think about or discuss penal policies in any systematic or focused way. That failure is itself a poltical/ethical crime, because prison and its uses is a consummately moral issue. Sentencing citizens to prison entails sending armed agents of the state after them, then placing them at the tender mercies of scalp-seeking prosecutors, and if convicted, locking them in cages and robbing them of their autonomy.

For us to collectively decide that the consensual, adult use or sale of intoxicants will be criminalized, means we are agreeing that hundreds of thousands of our fellow Americans will experience life-destroying calamity. These POWs will be ripped from their communities -- and frequently from their children -- for years, decades and for life, pursuant to mandatory sentencing schemes as Draconian as those in any dictatorship; how else to characterize putting, e.g., non-violent, vegetarian 23-year-olds in prison for life for selling LSD at Grateful Dead concerts? (It is some small measure of progress that in New York, they recently did away with the life sentences for drug offenders.)

Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained, as this shameful example shows, as does the case of Lillie Blevins, a non-violent woman who died while serving her life sentence for conspiracy to sell crack cocaine.

As bad as the wretched attention to health, if not worse, is the fact that in many prisons drug-offender “criminals” cannot be (or are not) meaningfully protected from rape and assault. And the drug war is directly feeding prison rapes. Tom Cahill, President of Stop Prisoner Rape, declares:

I credit the war on drugs with the tremendous increase in prisoner rape. Most prison rape victims are in for minor nonviolent offenses. The victim profile is a young adult heterosexual male, maybe small or with a slight frame, confined for the first time for a minor victimless crime such as possession of a little too much marijuana -- and too poor to buy his freedom. . . .

This epidemic of prison rape is just one more way the war on drugs is causing much more harm than the drugs themselves. These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves in a misguided attempt to "regain their manhood" in the same manner in which they believe it was "lost."

(Women drug offenders are raped as well, sometimes with tragic consequences.)

If most of us don’t ponder these brutal facts of prison life that often as we go about our daily lives, well, the mind will concentrate on it mightily if oneself or a family member is facing a drug conviction. At that point, HBO series about life in the slammer cease to constitute gripping, salacious entertainment, and become instead foreknowledge of an imminent, waking nightmare. Indeed, the soul-sickening dread of prison has induced suicides, for example, a married couple from the heartland who endangered the republic by growing marijuana plants in their home:

Last fall . . . Dennis and Denise Schilling of Waukesha, WI,… hung themselves in a Madison motel room after being threatened with prison sentences and the seizure of their home for growing marijuana. They, along with their 20-year-old son Joshua, had been arrested after a snitch and a narc bought a total of $120 worth of marijuana at the house. On September 25, five days after federal officials filed asset forfeiture papers against their home -- why the feds were involved with a penny-ante grow-up bust is yet to be explained -- the Schillings ended their misery.

(What do the feds say to themselves when they go to bed at night, one wonders? “Well, too bad they took it so hard, but those Schillings, they were such a menace?”)

But of all the under-reported tragic aspects of the drug war and prison, none is more poignant (and a source of outrage) than the children who have lost their parents, increasingly their mothers. The pleas from young sons and daughters to have their mother or father back can be simply heartbreaking. As can be the more elegantly drafted anguish of an adult child of a drug war victim, on the theme of visiting her father in his new “home”:

Knowing I am close to the solid, gray, steel door my heart pounds rapidly inside my chest. It jumps like a rabbit that has been caged up, then finally set free. This door is the entrance to a walk that consists of unkindness, coldness, and unhappiness. ... "Time is up, all inmates to the rear and all visitors to the front please." The men in crisp white shirts and flat gray pants look out into the room of smiles and those smiles quickly fade. I hug my father goodbye and a salty tear rolls down my cheek as I see my papa shed a tear of his own. He holds me tight and his mustache tickles my cheek. A smile is created. Remaining strong, I convince my legs to carry me past the rows of tables with chairs facing one another, all in a straight line.

The men in the crisp white shirts holler for us to say our goodbyes; if only they had to say goodbye as we do. I head towards the giant door that will take me on the walk, only this time it will be in reverse. I have no fears, just hope. Someday my papa will emerge into freedom with me, until then I will take this walk as often as needed, and I will remain strong.

Certainly one might think that in a political climate in which “family values” is such a pervasive trope, the public should be receptive to the passionate voice of a young man like Tyree Callahan, when he speaks on behalf of himself and his younger siblings whose father has been imprisoned since Tyree was 16 years old: "Drug war families want their loved ones back..."

And indeed, they do. Yet in this sweet land of liberty, in the name of a war on inanimate substances:

• Renea Darby, a non-violent drug “mule” has never spent a free day with her 15-year-old son.



• Ruth Carter is serving a 15 year, 7 month sentence on a drug conspiracy charge. While in prison and spending precious time away from her, Carter’s daughter was killed by a drunk driver (who she says spent a mere 8 months in prison).



• Douglas Lamar Gray , a father and Vietnam War vet is serving a life sentence for the heinous crime of marijuana trafficking: Says Gray:

I was fined $25,000 and sent to the overcrowded maximum security prison in Springfield (Alabama) with murderers and violent criminals. When I was sentenced, my wife attempted suicide with a pistol because of the emotional and financial stress. Fortunately, she survived, but then filed for a divorce. I was an independent roofing contractor and owned my own business with six men working for me; and sometimes as many as 12. But now I have nothing except my 12-year-old son who needs me badly.

• Loren Pogue never bought or used illicit drugs, but he sold some land to undercover federal narcotics agents who mentioned using it for drug trafficking, and so this "real estate agent, missionary, former serviceman, Mason, Shriner, Lions Club Member, American Legion, VFW, and past Director of a Children's Home" has been sentenced to prison for 22 years. "Five of Loren's children live over 3,000 miles from the prison in which he is held. He hasn't seen four of his children, or his wife in over 11 years [as of 2001]." This elderly enemy of the people has 27 children, 15 of whom are adopted.

The examples cited above could be reproduced by the tens of thousands: American parents, grandparents and otherwise productive citizens whose lives and families are destroyed by prison, because we have declared a “war” on plants, pills and powders. As G. Patrick Callahan, co-founder of the November Coalition hauntingly puts it:

Our marriages rarely last, and prisoners are usually shipped far from their homes. Contact with our children is minimal and often lost. Within about two years the lives of all concerned are irrevocably altered, generally for the worst: wives divorce and remarry; children grow up. The prisoner watches it all from the glass coffin of a prison cell. Behind the wire we are subjected to unremitting harassment, degradation, danger and discomfort, separated from virtually everything that makes life worthwhile. The years pass, one into the next, and many men simply go around the bend.

Drug addiction we are told – and it certainly is all too often true – can destroy a person. So to save us from ourselves, the government ruins millions of individual lives and those of their family members, by locking non-violent drug offenders in hellholes. Given that no sober citizen imbued with American values could see the moral sense in that, one might be forgiven for wondering what all the drug warriors have been smokin’.

UPDATE (by Glenn): This comment from Hypatia, responding to the view that drug criminals get what they deserve because the harm is "self-inflicted," is highly worth reading.

DoJ's Responses to Congress: The NSA Scandal in Microcosm

By Anonymous Liberal

As Glenn highlighted yesterday, the Bush administration has released written responses to questions about the NSA program submitted to the administration by the Republicans and Democrats on the House Judiciary Committee. If you haven't already read through these documents, I highly recommend it. Both the questions themselves and the administration's responses to them perfectly encapsulate everything that is so disturbing and frustrating about this scandal.

The questions submitted by the Democrats are very simple, straight-forward legal and factual questions, usually no more than one line long. They are the obvious questions that anyone interested in understanding this issue (and its legal implications) would ask. The administration's "answers" to these questions are uniformly non-responsive and, for the most part, simply repeat boilerplate language about the classified and sensitive nature of the program. Even purely legal questions are completely dodged. It takes the DOJ only 15 pages to respond to all 45 of the questions submitted by the House Democrats.

The questions submitted by the Republicans, however, are almost all long, convoluted, argumentative questions, many of which misstate key legal concepts. They are, for the most part, leading questions which assume away the most important distinctions in the law. The Republican questions are clearly not intended to augment anyone's understanding of the program, but rather to establish a legal and political defense for the administration. In stark contrast to the Democratic questions, the administration's responses to the Republican questions are generally fulsome and detailed (albeit highly misleading). It takes the DOJ a full 40 pages to respond to the 51 Republican questions.

The administration's responses to the Democratic questions, particularly when compared side-by-side to its responses to the Republican questions, are as blatant an example as I've ever seen of partisan stonewalling. For instance, consider the response to this important question submitted by the Democrats:

25. What is the limiting principle of the President's claimed inherent authority as commander-in-chief? For example, does this interpretation of the law authorize the opening of first-class mail of U.S. citizens under the DOJ's interpretation, and if not, why not?

The DOJ response merely repeats the administration's boilerplate description of the NSA program and then states: "Whether the President's authority under the Constitution would permit the interception of mail would require a different legal analysis."

The next Democratic question asks:

26. Under the Administration's legal interpretation, does the President have the authority to wiretap Americans' domestic calls and emails under his inherent constitutional power and the AUMF, if he feels it involves al Qaeda activity?

The DOJ response merely points out that NSA program is much narrower than programs authorized by President's Wilson and Roosevelt and ends by noting: "Interceptions of the contents of domestic communications would present a different legal question."

Is it even possible to craft a less responsive answer to a legitimate and important legal question? The entire point of the question is that there does not appear to be any relevant legal distinction between intercepting calls to which one party is a U.S. citizen and calls where both are; the Democrats want to know--for obvious reasons--why the Bush administration's legal reasoning doesn't extend to purely domestic calls. In response they are told merely that interception of domestic communications "would present a different legal question."

That's an insulting and totally unacceptable response to an incredibly important (and purely legal) question. There is simply no excuse for this behavior in our system of government. Congress has a right to have questions like this answered, particularly when the DOJ, at the same time, offers long-winded responses to Republican questions that are nowhere near as fundamental or important.

Indeed, the responses to the Democratic questions at times contradict the responses to the Republican questions. Throughout the Republican responses, the DOJ plays up the importance of the line of dicta in In re Sealed Case, the 2002 decision by the FISA court of review. Indeed the administration's entire legal position hinges on that line; it's the only case they cite in response to numerous questions. At one point in the Republican response--citing Sealed Case--the DOJ states that "the President was entitled to rely on the definitive pronouncement of the specialized court that Congress created to address precisely these matters." In other words, In re Sealed Case, offers the "definitive pronouncement" on the issue of whether the President has the inherent authority to conduct warrantless surveillance, regardless of what FISA says.

This is, of course, total rubbish, something the DOJ all but acknowledges in its responses to the Democratic questions. Given the administration's clear reliance on this particular line of dicta in Sealed Case, the House Democrats asked an obvious question:

36. Was any judge on the FISA court of review informed of the NSA program as part of the briefing of the 2002 appellate case, In re Sealed Case? Were any of the lawyers on that case read into the program? How many?

Here's the administration's response:

As we noted above, the identity of individuals who have been briefed into the Terrorist Surveillance Program is generally classified. We note, however, that In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct. Rev. 2002), involved whether the FISA Court had statutory or constitutional authority to place restrictions on interaction of criminal prosecutions and foreign intelligence investigators as a condition for granting surveillance orders. The Terrorist Surveillance Program would not have been relevant to the question before the court in that case (emphasis added).

This is an explicit acknowledgement that the decision in Sealed Case had nothing whatsoever to do with the issue of whether the president has the inherent authority to act outside of FISA. It's also a tacit acknowledgement that no one involved the case even knew about the NSA program. Yet in the responses to the Republican questions, the DOJ describes this case as the "definitive pronouncement" on the issue of inherent authority. They devote literally pages to discussion of a case which they acknowledge has nothing to do with the legal questions raised by the NSA program and was argued and decided by people who had no idea that FISA was being circumvented. Indeed, the core holding of Sealed Case was that FISA is constitutional ("We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.")

As an attorney, I can't even express to you how bewildering and pathetic it is to see the government repeatedly citing as their sole authority for a legal proposition--that the president's power to conduct warrantless surveillance survives FISA--a case that so obviously does not stand for that proposition.

The questions asked the House Republicans and Democrats and the answers provided by the DOJ are a perfect microcosm of this scandal. One side asks simple, obvious questions that cry out for answers. The administration responds by stonewalling. The other side asks silly, misleading questions, and the administration responds with long, convoluted and equally misleading answers that fail to address all the most obvious objections and legal distinctions. And when presented with these insulting and incomplete responses, neither side does much of anything about it, and the media pays no attention. Wash. Rinse. Repeat.

Administration tells Congress (again) - We won't abide by your "laws"

The Republicans and Democrats on the House Judiciary Committee submitted detailed questions to the Bush Administration regarding the NSA program, and the DoJ's responses to both the Democrats' questions and its responses to the Republicans' are now available.

There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President "agrees" to it and signs it into law, the President still has the power to violate that law if he wants to. Put another way, the Administration is telling the Congress -- again -- that they can go and pass all the laws they want which purport to liberalize or restrict the President's powers, and it does not matter, because the President has and intends to preserve the power to do whatever he wants regardless of what those laws provide.

Question number (5) from the Committee Republicans asked "whether President Carter's signature on FISA in 1978, together with his signing statement," meant that the Executive had agreed to be bound by the restrictions placed by FISA on the President's powers to eavesdrop on Americans. This is how the DoJ responded, in relevant part:

The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power. . . .

Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.“ (citations omitted).

Can that be any clearer for you - Congressmen, Senators, journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to "protect the nation." Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.

Thus, Sen. DeWine can pass his cute little bill purporting to require oversight, or Sen. Specter can pass his, or they can do nothing and leave FISA in place. None of that matters, because no matter what Congress or even the President do with regard to the law, the law does not restrict what the President can do in any way. They are telling the Congress to its face that all of the grand debates it is having and the negotiations it is conducting are all irrelevant farces, because no matter what happens, the President retains unlimited power and nothing that Congress does can affect that power in any way.

The reality is that the Administration has been making clear for quite some time that they have unlimited power and that nothing -- not even the law -- can restrict it. But here, they are specifically telling Congress that even if Congress amends FISA and the President agrees to abide by those amendments, they still have the power to break the law whenever they want. As I have documented more times than I can count, we have a President who has seized unlimited power, including the power to break the law, and the Administration -- somewhat commendably -- is quite candid and straightforward about that fact.

I believe that even people who are aware of these facts have not really ingested or accepted the reality that we have an Administration that has embraced this ideology of lawlessness. Yesterday, I received numerous e-mails from people asking why I had not written about this report from the Boston Globe, which reported:

When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.

The reason I didn't was because, as extraordinary as this signing statement is in one sense, it really reveals nothing new. We really do have an Administration which believes it has the power to break all laws relating, however broadly, to defending the country. It has said this repeatedly in numerous contexts and acted on those beliefs by breaking the law -- repeatedly and deliberately. They are still breaking the law by, for instance, continuing to eavesdrop on Americans without the warrants required by FISA.

This is not theory. The Administration is not saying these things as a joke. We really do live in a country where we have a President who has seized the unlimited power to break the law. That's not hyperbole in any way. It is reality. And the Patriot Act signing statement only re-iterates that fact.

In response to the Republicans' question (number 27) about whether President is exceeding his power by not just executing the laws but also interpreting them, the DoJ said this:

In order to execute the laws and defend the Constitution, the President must be able to interpret them. The interpretation of law, both statutory and constitutional, is therefore an indispensable and well established government function. . . .

The President's power to interpret the law is particularly important when he is engaged in a task -- such as the direction of the operations of an armed conflict -- that falls within the special and unique competence of the Executive Branch.

The "unique competence of the Executive Branch," to them, encompasses pretty much everything of any real significance, including what can be done to U.S. citizens on U.S. soil. With regard to all such matters, the President not only executes the law, but interprets it, and Congress is without power to do anything to restrict the power in any way. Here they are -- saying exactly this, again.

Put another way, the Administration has seized the power of Congress to make the laws, they have seized the power of the judiciary to interpret the laws, and they execute them as well. They have consolidated within themselves all of the powers of the government, particularly with regard to national security. This situation is, of course, exactly what Madison warned about in Federalist 47; it really is the very opposite of everything our Government is intended to be:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

As usual, the most amazing aspect of all of this is not that the Administration is claiming these powers. It is that even as it claims them as expressly and clearly as can be, the Congress continues to ignore it and pretend that it still retains power to restrict the Administration by the laws it passes. And the media continues to fail in its duty to inform the country about the powers the Administration has seized, likely because they are so extreme that people still do not really believe that the Administration means what they are saying. What else do they need to do in order to demonstrate their sincerity?

The Bush movement is unburdened by behavioral standards

(updated below - updated several more times)

I haven't blogged about the raging blogosphere controversy arising out of the hiring by WashingtonPost.com of former Redstate.org blogger and Republican operative Ben Domenech because I have not had much to say about it. I thought the hiring reflects some highly questionable editorial judgment, given that Domenech's writings are trite, rage-fueled rants filled with mindless talking points which one can find anywhere -- he aspires to be some sort of juvenile online Rush Limbaugh -- but WashingtonPost.com has the right to associate itself with that level of writing and analysis if it wants. And while there are some journalistic issues raised by the supposed need for "balance," others have discussed that issue thoroughly.

But now that it has been conclusively demonstrated that Domenech is guilty of a long pattern of repeated, deliberate and extensive acts of outright plagiarism -- routinely lifting paragraph after paragraph verbatim from other people's articles when purporting to write his own -- this little episode does now illustrate a significant dynamic worth commenting upon. Most Bush supporters have no behavioral standards of any kind and will defend any behavior at all -- no matter how venal or corrupt -- as long as it's engaged in by a fellow Bush supporter. Allegiance to the Bush movement outweighs every other attribute, and renders acceptable, even justifiable, even the most dishonest and reprehensible conduct.

Plagiarism is a serious and destructive offense. It has nothing to do with political views or ideology. Copying someone else's writing and claiming it as your own is deceitful, fraudulent and wrong. It is stealing. And Domenech is clearly guilty of that -- deliberately and repeatedly.

But Domenech loves George Bush and works as a Republican operative. He worked for Sen. Jon Cornyn, was a RedState regular, and edited Michelle Malkin's book. So behavioral standards don't apply to him. By definition, nothing that he does can be wrong -- certainly not that wrong -- because he's a person at his core who is incapable of doing anything truly blameworthy, and the proof of that is that he is a Bush supporter. As a result, in the face of this truly disturbing and facially conclusive evidence that Domenech is a serial plagiarist, his comrades at RedState are searching around desperately for some rationale to defend and justify his conduct, literally insisting that there is nothing wrong with overt acts of deliberate plagiarism.

I first began writing about the NSA scandal when -- almost immediately after the New York Times had disclosed the program, literally the day after -- I began reading in the blogosphere all sorts of twisted, plainly uninformed "legal" justifications from Bush followers as to why the eavesdropping the NSA was engaged in actually has nothing to do with FISA, how it's not even the type of eavesdropping covered by FISA.

There was one particular "legal theory" created by a Bush follower who deliberately misquoted FISA in order to create a facially false claim as to why FISA does not require warrants for the type of eavesdropping Bush ordered -- a justification that was instantaneously disseminated far and wide by Bush lovers such as Instapundit, a law professor, whose only desire was to find some justification for Bush's behavior before having any idea if the behavior was justifiable. That justification was never even raised by the Administration and was quickly discarded once revealed as fraudulent, but the speed and disregard for the truth which characterized its instantaneous adoption was truly amazing.

What was so striking in that case was how immediately these defenses were concocted and spread like some aggressive virus. Bush followers had no interest in knowing whether the Commander-in-Chief broke the law. Their sole interest was in hunting around desperately to find some explanation as to why he did nothing wrong -- before knowing if he actually did. He is George Bush, and he therefore can do nothing improper, or if he did, it is for good reasons and therefore should be defended. And that ethical shield extends to all Bush followers.

That same standardless, ethics-free mindset is thus painfully apparent with Domenech's plagiarism. Domenech is a Republican operative, Malkin editor, and Bush supporter. He is inherently ethical, and any charges that he has done anything improper are to be rejected regardless of the evidence and without even waiting to consider it.

RedState's Leon Wolf initiated the defense-at-all-costs of Domenech by first claiming that he was only 16 or 17 years old when these offenses were committed and this outright, extensive plagiaraism was merely an innocent and understandable matter of not being "fluent in APA guidelines for blockquoting and attribution." Once it was revealed that some of this plagiarism was actually quite recent, when Domenech was in college (he's now 24), Wolf shifted his defense to the only thing he had left -- an outright justification of plagriaism. Wolf explained that he recently read a book and:

Since I've read that book, I've been chewing a lot of the ideas in my head, and I'm sure if you read over my posts from the last month, you'll find me saying things that are on the surface very similar, and it's possible that I may have even used some identical turns of phrase (although this certainly was not intentional and I didn't have a copy of the book in front of me while writing any of the aforementioned posts.) That's not plagiarism, that's being influenced.

All the same, Ben can answer for himself on these issues. I stand by my original comment in this thread, however (I think it's number three), and will continue to do so even if someone produces a videotape of Ben doing everything they've accused him of - because none of what he did in his teenage years, even if we grant that it is all true - will diminish from the truth and strength of what he is doing now.

There are now posts up at RedState entitled "We Must Defend" and "We Must Attack," insisting that Domenech did nothing wrong and demanding that Bush followers defend him regardless of whether he did. The former actually claims that all of this seems like plagiarism "only because permissions obtained and judgments made offline were not reflected online by an out dated and out of business campus newspaper"-- as though all of the magazines and journals in which his plagarized articles appear, including magazines such as National Review, really did arrange permission with all of the authors from whom Domenech stole but simply forgot to include that permission. They resort to every excuse, every justification, every false defense in order to shield their comrades, or, like Michelle Malkin and Powerline, who were eager to defend and praise Domenech before he stood revealed as a serial plagiarist, they say nothing.

It is a base, tribal mentality where group allegiance cleanses any and all wrongdoing and immunizes the individual from any accusations of wrongdoing. We have seen this play out over and over with every Bush scandal, where no conduct is too extreme and too facially wrong to be beyond their willingness to defend it away and justify it. If you support George Bush, you can do anything -- including stealing, like Domenech did repeatedly and extensively -- and still be defended, because your allegiance to the Leader means that anything you do is good, right and justifiable. That is the mentality that has been governing our country for five years now, and it is vividly apparent with this tawdry debacle.

UPDATE: Pro-Bush blogger Patterico commendably comments on the Domenech scandal, admitting that, at the very least, it is an "embarrassment." He also says he is "suspicious" about RedState's facially ridiculous defense of Domenech that the newspapers simply forgot to include all of the permissions they obtained for Domenech to lift all of that material. And he points out:

We all talked up the fact that this guy was getting a blog on the WaPo. This is a genuine issue, and it should be discussed on conservative blogs.

We'll see if his fellow pro-Bush bloggers heed his invitation for this discussion.

UPDATE II: Credit where it's due - other right-wing bloggers have now condemned Domenech's plagiarism, including Political Pit Bull and Confederate Yankee. Dan Riehl says that "if the facts are as they appear - Ben Domenech has to go. And the sooner the better." Riehl adds:

If the plagiarism allegations are true and RedState and other notable right wing bloggers stand behind Domenech - it won't be because of principle. It'll simply be a classic example of cronyism and connections getting in the way of the truth.

Indeed. How much longer can Red State go without retracting their false claims in defense of him and acknowledge that their founder is a serial plagiarist? How much longer can bloggers like Malkin and Powerline who defended Domenech remain silent about this, particularly Malkin, who called Domenech "[m]y very smart and talented editor, Ben Domenech, of Regnery Publishing."

UPDATE III: I think we also need to be hearing quite soon from Hugh Hewitt, since Domenech also edited his latest book. Hewitt says about him:

Domenech is a superb writer/reporter and very well wired on all things conservative. He's also coming to his job from Regnery, where he has just finished editing my new book.

This strikes me as a very significant story now. The founder of RedState and Regnery editor (who, among others, edited the latest books of Michelle Malkin and Hugh Hewitt) is a serial plagiarist, and Red State is issuing factually false defenses to justify his behavior.

Domenech has been skyrocketed up the movement ladder quickly because his father is a well-connected Bush loyalist and he has obviously learned the art of limitless and ethics-free political warfare. In many ways, he's a poster child for the Bush movement. And the fact that WashingtonPost.com hired him to be one of their in-house bloggers in response to right-wing pressure, while his allies defend even his most indefensible conduct, is quite a case study of so many significant things.

UPDATE IV: Michelle Malkin steps up with a commendably forthright post condemning the serial plagiarism of her book editor and opining:

I certainly understand the impulse on the Right to rally around Domenech. But I can't ignore the plain evidence. And the charges can't be dismissed as "lies" or jealousy attributed to Ben's age.

The bottom line is: I know it when I see it. And, painfully, Domenech's detractors, are right. He should own up to it and step down.

She closes, however, on a sour note:

Then, the Left should cease its sick gloating and leave him and his family alone.

The pro-Bush blogosphere has built a name for itself by viciously swarming around vulnerable people and trying to end their careers. Ask Dan Rather. Or Eason Jordan, whose career death Malkin celebrated here:

The MSM calls it a lynch mob. I call it a truth squad.

The likes of Powerline, Instapundit, Capitan Ed ("I think we all can take some justified satisfaction with our small part in changing the world tonight."), and Hugh Hewitt all engaged in an orgy of self-congratulations over their tireless, and ultimately successful, efforts to destroy Jordan's career. And we can now undoubtedly look forward to some more pious intoning from that same corner about the horror of lynch mobs and feeding frenzies and the like.

Speaking out of both sides of the Bush-loving mouth

By Anonymous Liberal


Glenn has done an excellent job over the last two days explaining why it makes no sense for Democratic senators to withhold judgment on Sen. Feingold's censure resolution pending the completion of an investigation that 1) is not going to happen, and 2) could not possibly yield any additional facts that are relevant to determining the legality of the President's warrantless surveillance program(s).

The problem here is that the administration's defenders have conflated policy analysis with legal analysis, and most Democrats are either unable or unwilling to point out the difference. Indeed, the Jeff Goldsteins of the world readily declare the NSA program to be good policy while, at the same time, insisting that "we DO NOT have enough information to make an informed judgment about the program's legality." In other words, we must remain agnostic about the legality of the program pending further investigation, but we do not need further investigation to know that the program is good and effective and does not unreasonably infringe on our civil liberties.

It is impossible to understate just how incoherent and ass backwards this position is. Policy analysis is much more fact-intensive than legal analysis. To know whether or not something is good policy you generally need to know ALL the facts. That's just the nature of policy analysis. One small detail can turn an otherwise good policy into a spectacularly bad one.

The same is not at all true of legal analysis, which relies almost entirely on public documents (statutes, published opinions, the Constitution, etc.). Determining whether an activity runs afoul of the law only requires knowing a few legally significant facts. The remaining details may augment or diminish the extent of the wrongdoing, but they do not bear on the legality of the conduct at issue. As both Glenn and I have explained ad nauseum, the facts necessary to evaluate the legality of the NSA program are not even in dispute. The administration has admitted that the type of surveillance it is conducting requires a warrant under FISA, and it has admitted that warrants were not obtained. The rest is purely a matter of law. As Glenn explained the other day:

[A]ll of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don't know the scope and extent of the President's illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal.

But while the censure debate is ripe for discussion, the greater policy debate is most certainly not. We don't know how the program works, what technology or processes it employs, how effective it is, what safeguards or oversight (if any) are in place, or whether there has been any abuse. All of these facts are highly relevant to any policy analysis of the program and can only be determined through further investigation.

Nevertheless, the same Republicans who claim that Russ Feingold's legal pronouncements are uninformed and premature are unwilling to investigate this program and appear determined to press ahead with legislation that would render it legal (at least going forward).

Before long, Democrats (and Republicans) in the House and Senate will be forced to vote on this legislation, which, if passed, will gut the Foreign Intelligence Surveillance Act, a law that has governed the surveillance of Americans for almost 28 years and has been fine-tuned by Congress on numerous occasions (most recently two weeks ago). Between now and the time that bill comes up for a vote, there will be no Congressional investigation, no further fact-finding. Indeed, for most members of Congress, there will not even be a classified briefing. Our representatives and senators will be asked to legislate in the dark, to make a policy judgment about a program of which they know virtually nothing--except, of course, that it's currently illegal.

When that day comes--and it will--what do Democratic Senators plan to do? They won't know any more about the program than they know now, and they will be expected to make a policy judgment, not a legal one. They'll be expected to vote "yay" or "nay" on a bill called the Terrorist Surveillance Act of 2006. Do they really think that if they just lay low and remain agnostic, this issue will go away? Do they think they'll be able to punt on this issue indefinitely?

This battle cannot be avoided (nor should it be). Democrats can either choose to set the terms of the debate by going on the offensive and supporting Feingold's resolution, or they can once again allow the GOP to define the debate. Instead of a debate over censure we can have a debate over the Terrorist Surveillance Act of 2006.

As the minority party in Congress, the only weapon the Democrats have is symbolism. Feingold's censure resolution offers a platform for Democrats to frame the upcoming debate, to explain to America that President Bush broke the law and that his own party has refused to investigate it. It is an opportunity to put the administration on the defensive. If the GOP then moves ahead with an attempt to legalize the President's conduct, the Democrats will have already made it clear to the public why they cannot support such a bill. Their opposition will seem principled and consistent. The Terrorist Surveillance Act will look like what it is, a piece of cover-your-ass legislation introduced only after the President had been caught red-handed breaking the law.

If the Democrats wait until the DeWine bill comes to the floor to speak up, they will once again come across as indecisive and weak. They will allow the administration to frame this issue as one of terrorism policy, as opposed to presidential law-breaking.

This issue is not going to go away. The context in which it plays out is entirely up to Democrats in the Senate.

Waiting for the non-existent NSA investigation

(updated below)

Some significant NSA scandal developments and issues of note:

(1) Democratic Senators, such as Feinstein and Murray, continue to issue statements claiming that they cannot decide their position on the Censure Resolution until an investigation (which isn't occurring) is complete. Along the same lines, Jon Henke at QandO, who has expressed opposition to the illegality of the warrantless eavesdropping program in the past, agrees with what I said yesterday in my post about the fact that it is inexcusable that Republicans have blocked any meaningful investigation into the NSA program, but Jon also said that it was "ridiculous" for me to argue that no investigation was needed in order to decide whether censure was appropriate.

As I made clear, I am not arguing against an investigation. To the contrary, I spent three weeks before all of the Republicans on the Intelligence Committee voted against an investigation urging that one be conducted and trying to do everything possible to induce one of the Committee Republicans to vote in favor of holding hearings. But none did, and so the reality is that no investigation is occurring. My argument is not that we shouldn't have an investigation, but that none is needed to know that the President broke the law, because all relevant facts on that question are already known.

Thus, anyone who claims that an investigation is needed before being able to take a position on the Censure Resolution (or, even more irrationally, those who claim that no Senator can take a position unless they were fully briefed on the program), should have to answer this question:

Specifically, what facts remain to be discovered that are relevant to the question of whether the President broke the law when ordering warrantless eavesdropping on Americans?

Nobody who claims that we need an "investigation" before being able to know if the President broke the law ever specifies which relevant facts remain to be discovered. As I indicated yesterday, there are numerous unanswered questions as to the extent and scope of the warrantless eavesdropping, but no unanswered questions that are relevant to the question of whether the program is illegal.

Can someone -- anyone -- who thinks otherwise -- who believes that some sort of investigation or a secret briefing is needed before one can take a position on censure -- please identify exactly which facts are unknown that need to be known before being able to determine the legality or illegality of the NSA program?

(2) Law Professor Glenn "Instapundit" Reynolds' posts become more mindlessly partisan and bereft of logic by the day, which is really saying something since they didn't exactly begin at a particularly lofty or scholarly place. Yesterday, Instapundit referenced a movement to "censure" Jimmy Carter due to political activism in which Carter has engaged in the foreign policy area, and Instanpundit issued this judgment:

Well, it's no dumber than Russ Feingold's.

Instapundit sees no material difference between: (a) a resolution to censure a sitting President for repeated, deliberate and ongoing violations of the law and (b) a resolution to censure a private citizen for views he expresses on foreign policy matters. But he wants to you know that he's an Independent, not a Republican, and always remains far above partisan impulses (h/t Insta-monitor Zack).

(3) Another prong of the NSA scandal -- another one that can't be killed off by Pat Roberts and Bill Frist -- has emerged:

The company that publishes the Oregonian newspaper in Portland has filed a motion in U.S. District Court in Oregon to unseal documents in a pending case that alleges the Bush administration illegally intercepted international phone conversations between the codirector of an Islamic charity and his two lawyers in the United States.

In a motion filed Friday, lawyers for the Oregonian Publishing Co. argued that it is in the public interest to know the contents of documents that could prove the existence of a potentially illegal domestic spying program.

"This appears to be the first case in which documents have been filed with the court demonstrating the National Security Agency's practice of wiretapping private conversations," said Charles F. Hinkle, a lawyer for the publishing company. "We are not interested in the content of the attorney-client communications. We are interested in what the government did" . . . .

Hinkle says the Oregonian and the public deserve full disclosure.

"If the government carried out an illegal and unconstitutional program," he said, "then we think it's very important that the public know about that. "

Despite the best and most corrupt efforts of the White House and their Republican Congressional servants, we are going to find out, one way or the other, whether the Government eavesdropped on Americans who have nothing to do with terrorists and/or on their purely domestic communications. It doesn't matter how many Committee investigations are squelched or how many Nixonian laws are passed to render legal the President's illegal conduct. There are too many mechanisms for this information to emerge for it to remain concealed. Congratulations to The Oregonian for acting like a newspaper should.

(4) Arlen Specter issued a somewhat cantankerous statement which at least sounds like he isn't anywhere near ready to call off the Judiciary Committee's ongoing inquriy into the legality of the NSA program:

A vocal Republican critic of the Bush administration's eavesdropping program will preside over Senate efforts to write the program into law, but he was pessimistic Wednesday that the White House wanted to listen.

"They want to do just as they please, for as long as they can get away with it," Senate Judiciary Chairman Arlen Specter, R-Pa., said in an interview with The Associated Press. "I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

But, Specter said, the committees haven't gotten full briefings on the program, instead choosing to create small subcommittees for the work. . .

"The intelligence committees ought to exercise their statutory authority on oversight, but they aren't," Specter said. "The Judiciary Committee has acted. We brought in the attorney general. We had a second hearing with a series of experts, and we are deeply involved in it."

And he re-iterated his opposition to the Dewine Nixon Law designed to render legal the Administration's lawbreaking:

DeWine, however, wants to give the administration as much as 45 days to operate without a court warrant. If at any point the attorney general has enough information to go to the intelligence court, he must.

Under that approach, Specter said the administration can still "roam and roam and roam, and not find anything, and keep roaming. ... I think that's wrong."

Specter said he hopes there will be a vote sometime in May on all of the pending legislative proposals relating to the NSA scandal, which includes the Censure Resolution. Someone may want to tell Democratic Senators that they're going to have to take a position sooner or later on these matters without being able to wait for the non-existent investigation that they say they are waiting for. Isn't it quite obviously better to advocate for the Resolution now in order to build public support for it? Speaking of which . . .

(5) Even Joe Lockhart, the former Clinton press secretary, recognizes that Republicans are transparently bluffing when they claim they want this scandal to persist. As The New York Observer reports:

[Lockhart] sees no political downside to Senator Feingold’s proposal—and likewise sees much desperation in the Republican spin that it would be another self-inflicted Democratic wound that would haunt the minority party in the fall elections. All the G.O.P. bluster about an early vote on the Feingold proposal to smoke out weak-sister Democrats for elimination in November, Mr. Lockhart said, “is complete nonsense.”

He said: “One simple rule of politics is that the more ferociously you’re pushing your talking points, the less you believe in them. The Republicans jumping so hard on this tells you that they believe they’re in a really vulnerable position—that this issue is not the winner they thought it was.”

Similarly, former DNC press secretary Terry Michael describes exactly the problem Democrats face:

“The fear factor inside the Democratic Party is appalling,” he added. “You’ve got these small-minded Democratic-consultant-driven political leaders, and then you’ve got real neocons who refuse to listen to the base of the party …. You have these voices of unbridled ambition—Hillary Clinton first among them—who are asking the base to nominate them, when they’re not even listening to the base when it comes to the most important issue in American politics today.”

H/t here to Greg Sargent, who adds his own excellent analysis that is highly worth reading in full:

More and more Dem strategists are arguing that Dems need to stop tripping over their own caution every single time the GOP says they've got a winner on their hands -- after all, the Republicans can always be counted on to say that, regardless of whether they even believe it -- but it's especially refreshing to hear a Clintonite saying so.

This could be significant. If even former Clintonites, known for their caution and political calculations, recognize that the NSA scandal is a serious political threat to Republicans and that their bravado to the contrary is just bluffing, this recognition may be gaining traction.

UPDATE: I wish I had time to comment extensively on this post from conservative-libertarian John Cole -- in which he explains why his "20 year affair with the Republican party is coming to an end" -- but since I don't, I will instead urge you to read it. Cole is not some fringe theory-libertarian or doctrainaire Goldwater conservative whose numbers are quite small. Instead, he represents a type which makes up a big bulk of the Republican Party. He's a common sense conservative who basically believes that the Government should, when possible, stay out of our lives and that we should err on the side of restrained Federal Government intervention.

As the NSA scandal among many other things illustrates (and, from what I can tell, the real wake-up call for Cole was the Schiavo travesty), the Bush Administration has been operating for many years from the opposite premise, and conservatives like Cole are feeling extremely alienated from the comprehensively non-conservative Republican Party.

Myth-making and excuse-making on the Feingold Resolution

(cross-posted at The Huffington Post) In order to generate further support for the Feingold Censure Resolution, numerous bloggers are encouraging everyone to pay an actual physical visit to their Senators' local offices in order to urge support for censure. Anyone doing so is likely to encounter the two primary myths/excuses which have been concocted by Senators and others in order to justify their refusal to support the Resolution. They are both plainly false: MYTH/EXCUSE NUMBER ONE: An investigation is needed before it can be known whether the President broke the law. This has become the favored weapon of evasion for most Democratic Senators. Most who have refused to take a position on the Feingold Resolution have used the excuse that there has to be a full investigation before they can know if censure is appropriate. We have heard this excuse from, among many others, Senators Salazar, Stabenow, Bingaman, Levin and Dodd. That is just a small sampling of the list of Democrats who have claimed not to be able to take a position on the Feingold Resolution until an "investigation" is conducted. Bush supporters have also been peddling this same myth. In his angry and rather uncontrolled rant this weekend on Chris Wallace's show, Brit Hume proclaimed that it was somehow outrageous for Senators such as Feingold and Tom Harkin to attack the illegality of Bush's warrantless eavesdropping when they "have not even been briefed on the program" -- as though we do not yet know enough about the program in order to determine whether it is illegal. This excuse for not taking a position on censure is not only false, but also outright illogical on its face. There are two distinct and independent issues raised by the NSA scandal: ISSUE 1: Did the President break the law when he ordered warrantless eavesdropping on Americans? ISSUE 2: What was the scope and extent of the President's secret eavesdropping? Did the warrantless eavesdropping include only international calls, as he claims, or purely domestic calls as well? Were only suspected Al Qaeda members eavesdropped, on as he claims, or did the eavesdropping extend beyond that? How was it determined who would be eavesdropped on? And what was done with the information? These issues are separate and distinct. Issue 1 is what Feingold's Censure Resolution concerns. It is the "Illegality Question," i.e., whether the President broke the law when ordering warrantless eavesdropping on Americans. Issue 2 is the "Abuse Question," i.e., whether the President abused the eavesdropping powers he secretly exercised in violation of the law by, for instance, eavesdropping on Americans who have nothing to do with Al Qaeda or eavesdropping beyond the scope what he has claimed. It is unquestionably true that an investigation is needed - urgently needed - in order to learn the answers to the questions relating to Issue 2. We do not know the scope and extent of the President's warrantless eavesdropping precisely because he eavesdropped in secret in violation of the law, rather than with judicial oversight. That is why it is so inexcusable that all of the Republicans on the Senate Intelligence Committee voted against Sen. Rockefeller's motion to conduct an investigation to find out the answers to these questions. But in stark contrast to Issue 2, all the facts necessary to know the answer to Issue 1 are already disclosed, are publicly available, and have been admitted by the Administration. Therefore, while an investigation into Issue 2 is imperative, all of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don't know the scope and extent of the President's illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal. Under FISA, it is a criminal offense to eavesdrop on Americans without the oversight and approval of the FISA court. Section 1809 of FISA expressly provides that "[a] person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute. . . ." And Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted." Thus, a person has broken the law if -- as the President admits he did -- he orders eavesdropping on Americans without complying with the warrant requirements of the statute. Period. The Administration admits that it did just that -- that the President ordered exactly the warrantless eavesdropping which FISA makes it a criminal offense to engage in. The Administration does not deny this fact. They admit that the eavesdropping they engaged in is exactly the eavesdropping for which FISA requires judicial approval, but defend themselves only by claiming that they had the legal right to engage in this eavesdropping without complying with the law. Here is Alberto Gonzales making this precise admission at his December 19, 2005 press briefing with Gen. Hayden: Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. That is Gonzales admitting that the warrantless eavesdropping they engaged in is the type for which FISA requires judicial approval. By definition, there is no investigation needed to determine whether the Administration engaged in warrantless eavesdropping prohibited by FISA because that fact is not in dispute. In defending itself, the Administration is offering only legal arguments -- not factual disputes -- as to why it had the right to eavesdrop without complying with the law (namely, that the President has inherent authority to eavesdrop even if the law prohibits it, and that Congress gave him implicit permission to eavesdropping outside of FISA when it enacted the AUMF). But the Administration is not denying -- and has never denied -- the fact that it engaged in the very warrantless eavesdropping covered by FISA. Thus, no investigation could even conceivably shed further light on the question of whether the President broke the law. We know he did that. The sole question which Senators have to answer is what they think the consequences ought to be, if any, for a President to order eavesdropping on Americans citizens which Americans, through their Congress, prohibited by law. An investigation cannot answer the question as to whether U.S. Senators ought to take a stand against deliberate and ongoing lawbreaking by a President. Only U.S. Senators can answer that question, and they already have all the facts that are relevant to that question already before them. Claiming that they need further "investigation" before taking a position is nothing short of an abdication of their responsibilities, an obvious tactic for avoiding the question of whether they oppose lawbreaking by the President. MYTH/EXCUSE NUMBER TWO: Republicans want this scandal to persist because it benefits them politically. Ever since this scandal emerged, Republicans have been wallowing in the bravado of claiming that they "welcome" this scandal because it will benefit them politically, and they continue to engage in this chest-beating in the hopes that Democrats will be intimidated into walking away meekly from the President's law-breaking. Just yesterday, National Review's Senior Editor Ramesh Ponnuru boasted that Republicans were "delighted" by the Censure Resolution, and Glenn "Instapundit" Reynolds gleefully linked to that item and smugly added: "Delight is pretty much all that I've observed." Many Democrats actually seem to be shaken by this sort of cheap and transparent self-defensive bluffing. The conduct of Bush supporters from the very beginning of this scandal, as well as an unbroken string of public opinion polls, reveal just how false and baseless that pretense is. While boastfully claiming that they "welcomed" an open and full discussion of the NSA scandal, the Republicans have worked feverishly to kill off every proposed Congressional investigation and to sweep this scandal as quickly as possible under the rug, never to be heard from again. They furiously lobbied Republicans on the Senate Intelligence Committee to vote against an investigation into this program. They have been working endlessly to forge an agreement with Congress to render their program legal in order to stave off the investigation by the Senate Judiciary Committee. And after Sen. Feingold introduced his Censure Resolution on Sunday morning, Sen. Frist was on the Senate floor less than 24 hours later trying to force an immediate vote, before anyone could even read the Resolution, let alone debate the proper remedy for the President's law-breaking. In sum, while claiming that they will reap great political benefits from this scandal, they have done everything possible to conceal the President's actions, block investigations, and prevent a public debate on these matters. Those are most assuredly not the actions of a political party which wants to keep this issue in the spotlight. It the opposite - frenzied and desperate attempts to conceal what the President did and to prevent any attention from being paid to this scandal. As I have noted many times, public opinion polls have repeatedly shown that pluralities of the public believe that the President broke the law and majorities oppose eavesdropping on American citizens without warrants. Basic logic dictates that, for Republicans, there is nothing to be gained -- and much to be lost -- from a scandal based upon the deliberate and repeated law-breaking by a highly unpopular President, all in order to spy on Americans in secret rather than with the judicial oversight required by law. It is critical that Democrats recognize that we are not in 2003 anymore. George Bush is a wildly unpopular President whom the public neither likes nor trusts. The public overwhelmingly believes that the President deliberately made false statements to induce the nation into war and that he cannot be trusted. It is nothing short of transparent delusion to suggest that Americans -- outside of the dwindling number of blindly loyal Bush followers -- will somehow be offended by Democrats objecting to Bush's violations of the law, or by demanding that he not eavesdrop on American citizens in secret, just as the law, for 30 years, has prohibited. Bush followers continuously try to perpetrate the myth that Bush is a beloved President who enjoys support from most Americans, and therefore Democrats should be afraid to stand up to him, especially on issues of national security. Just yesterday, Glenn Reynolds -- whose blog always features the most up-to-date display of false pro-Bush talking points -- wrote a post defending the plainly false, triumphant statements he made back in April, 2003 about the Iraq War and, in doing so, he spit out this bit of revealing delusion: I had actually planned not to rub this in -- the "antiwar" movement has shrunk to such a pitiful remnant of its not terribly impressive former self that it hardly seems worth it. Polls show that the vast majority of the country oppose the war in Iraq and believe it was a mistake. The percentage of Americans who are anti-war has steadily and rapidly increased and continues to rise. But in the starkly delusional and propagandizing mind of the Bush follower, President Bush's war policies enjoy the support of an overwhelming proportion of Americans and only a few enclaves of crazed, marginalized radicals oppose him. Many Democratic Senators -- beaten around for several years after 9/11 by Bush's now-dead popularity -- also seem to have these false premises still engrained within them. But all of that is just myth, pure delusion. The increasingly marginalized and radical views are those of Bush followers, not Bush opponents. The ethos of the country has changed not just on the margins, but fundamentally. It may be the case that in 2003, there was a rational argument to make that political calculations militated against standing up to the President's law-breaking. The fantasies of Bush followers notwithstanding, it is not 2003 anymore. It is long past time for Democrats to stand up to and firmly oppose the most radical elements of this Administration. And there are few elements more radical than the President's deliberate decision to break the law.

Various matters

(updated below - with new RNC "Censure" ad and reply from Ramesh Ponnuru)

(updated again - with the link to the C&L post)

I never ended up posting at Crooks & Liars on Sunday, so I will post there today instead and will put the links to those posts here once they are up. For now, a few items of note:

(1) My first post at C&L (not yet up) concerns the quite predictable but significant controversy that has broken out over a new report, issued by two leading American academicians, which -- among other things -- contains “a searing attack on the role and power of Washington's pro-Israel lobby . . . , warning that its 'decisive' role in fomenting the Iraq war is now being repeated with the threat of action against Iran.”

For committing the crime of discussing these issues, these two professors are now the target of a character smear campaign that is, in equal parts, mindless and vicious, and it comes from usual suspects such as Glenn "Instapundit" Reyonlds, Powerline, and The New York Sun. These types of attacks -- whereby anyone is immediately labelled an anti-Semite and a bigot by virtue of even questioning the role and behavior of neoconservatives or criticizing American policy towards Israel -- has, by design, intimidated most people from commenting on these vital issues. But as I say in the post the link to which I will post here as soon as C&L posts it:

With our little adventure in Iraq becoming more disastrous and costly by the day, and with the all-too-familiar election year militarism heating up over Iran, this country has some very serious and consequential choices to make about our foreign policy. A substantive and frank discussion is exactly what we did not have leading up to the Iraq War, where war opponents were mocked and smeared and their arguments scorned but not answered. We should not allow the Instapundits and The New York Sun's of the world to drive our country -- again -- into foreign policy debacles through the use of character smear and cheap sloganeering in lieu of adult, meaningful and serious discussions about our foreign policy and the people who are seeking to shape it.

There is much in the conclusions of Mearsheimer and Waltwith with which one can reasonably, even vehemently, disagree. But one need not agree with them to recognize the importance of the issues they raise and of the equally important need to be able to discuss them without the smear tactics and personal attacks which, increasingly, have become the only tactic left to Bush followers.

(2) The finalists for the Wampum Koufax blog awards have been chosen, which you can see and vote for here. This blog was selected as a finalist for the Best New Blog category, Best Writing category, and Best single Post category (for Bush's Unchecked Executive Power v. the Founding Principles of the U.S.).

(3) Jennifer Nix -- who edited George Lakoff's best-selling book, was responsible for Markos' book being published through Chelsea Green, and who conceived of the idea for my book -- has written a guest post (below) expounding on her genuinely innovative and important approach for creating a new publishing system that will allow ideas to be delivered directly to Americans on pressing issues of the day without having to rely on the establishment media or anyone else. In a sense, what she has been building for some time is the blogosphere version of book publishing -- an intense, citizen-driven model for delivering ideas, arguments, analysis and evidence which the media simply cannot or will not convey.

(4) Steve Benen at The Carpetbagger Report has some thorough analysis on the U.S. News and World Report article reporting on the "discussions" within the Bush Administration to engage in warrantless physical searches of homes in America based on the same theories of lawlessness which led them to eavesdrop on the communications of Americans without warrants. This should surprise nobody.

As I have pointed out many times, there is absolutely nothing unique to surveillance about the Administration's theories of power. They do not have a theory of surveillance. They have a theory of Presidential power which posits that the President can do anything relating to national security -- including against American citizens on U.S. soil -- without any restraints, including those imposed by law. That theory justifies warrantless physical searches along with a whole variety of other war powers on U.S. soil every bit as much as it justifies warrantless eavesdropping. That we have not yet had a real debate about how sweeping and radical those powers are is, by itself, its own scandal.

(5) The panel for yesterday's debate on To the Point regarding Sen. Feingold's Censure Resolution ended up being: John Dean, National Review's Ramesh Ponnuru, Matt Yglesias and me. The 45-minute segment can be heard here, under "Impeachment, Censure and Political Reality." Beginning at about the 15:00 minute mark, the debate becomes interactive and a little heated, arising out of: (a) Ponnuru's reciting of the conventional wisdom (squarely contradicted by the Republicans' actions) that the GOP wants the NSA scandal to continue to receive attention because it benefits them politically, and (b) his flatly inaccurate characterization of Feingold's resolution. The more strained and shrill Bush supporters become on this issue, the clearer it becomes just how threatening this scandal is to them.

UPDATE: Ramesh Ponnuru is apparently taking writing lesson from his colleague Jonah Goldberg, who refers to Bush opponents in the LA Times as "moonbats." In a petulant little item in the Corner today, Ponnuru explains that I'm a "moonbat" and that he is replying to the item above on my "moonbat site."

On its face, the Feingold Resolution seeks to censure the President for breaking the law and for deceiving Americans about the program, not for "defending" the program as Ponnuru falsely claimed, both on the radio yesterday and again today in the Corner. Here is the full text (.pdf) of the Resolution. There are two components and two components only to the censure -- the illegal nature of Bush's program and his patterns of deceit when speaking about the program. Bush "defended" his program in multiple ways and the censure resolution -- contrary to Ponnuru's false claims -- does not seek to censure him for doing so. The Resolution seeks to censure him only for ordering an unlawful program and then deceiving Americans about the program.

I have documented before that the Administration is incapable of responding to this Resolution without purposely distorting what it actually says. Just today, Ponnuru's colleague, Byron York, reports on a new RNC ad called "Censure" which contains this passage:

But some Democrats are working against these efforts to secure our country, opposing the PATRIOT Act and terrorist surveillance program.

Their leader is Russ Feingold.

Now Feingold and other Democrats want to censure the President.

Publicly reprimanding President Bush for pursuing suspected members of al Qaeda. . . .

Is this how Democrats plan to win the War on Terror?

Is it even necessary at this point to explain why that is so intolerably misleading and just outright false? Is Russ Feingold, by any reasonable interpretation, seeking to censure the President "for pursuing suspected members of al Qaeda" rather than for violating the law? What does it say about our media that the RNC (and Ponnuru) think they can get away with such complete mischaracterizations of a very straightforward and clear issue?

UPDATE II: My post at C&L is now up here.

The New Face of Patriotism

by Jennifer Nix

I want to thank Glenn for giving me a chance to explain why I am so moved by his forthcoming book, How Would a Patriot Act. It represents the combined passions of many people, and I hope it's an illustrative tale of what can happen when we are committed to, as Glenn would say, doing the right thing.

For the past year, I've been evangelizing about the need to create a reliable and effective counterweight to the independent, pro-Bush publishing powerhouse, Regnery. This publisher ushers right-wing ideology onto the bestseller lists with the help of massive investment from Bush supporters, the support of right-wing groups and media--and political campaign-like publicity efforts that monopolize media coverage and influence the national discourse. Think Swiftboats.

Judging from the tremendous reactions I've gotten in the past week, I firmly believe we have hit on the right idea, at the right time--particularly, too, as the corporate-owned publishers have seen the success of Regnery, and have been racing to set up their own politically-connected and -driven right-wing imprints. I wrote a piece last week that led me into some email and phone discussions with various folks, and I learned about other efforts to create some kind of nimble, alternative publishing venture that could be counted on to usher instant and other books out, to help new ideas and leaders get a fair hearing in the corporate and right-wing media landscape. Part of this quest is to create marketing and distribution channels that start with those most passionate about the book's message, as Regnery has so successfully done with the pro-Bush base.

As it turns out, there have been several proposals floating around with various groups and funders, envisioning what this venture would look like. Mine was one of them. Shant Mesrobian's was another. Rick Perlstein shared some info about his efforts to get a discussion like this started a couple of years ago. A number of us have been saying that we need some kind of concerted, politically-connected and -driven effort to effectively usher progressive and other good ideas--in the form of books--onto bestseller lists and via special sales and distribution, if we are going to have a chance of competing with the right-wing message machine. The problem is that while many folks seemed to get that this is a good idea, no one was throwing any money at it to help develop the plan further.

A couple of months ago, Markos Moulitsas Zuniga, Will Rockafellow (who works with a major book distributor) and I met to discuss how we could jumpstart this idea. I'd had the experience of landing and marketing the George Lakoff bestseller while at Chelsea Green, and knew what it felt like to get a book out fast, at the right time--and into the hands of the right folks. Markos knows what it's like to build a new community, and to deliver information and commentary to the netroots and beyond: to meet a need no longer best-served by only traditional media. Will knows the business of distributing books, and the many challenges therein. What we realized was that we had to prove to funders that something like the Lakoff book could happen again, in order to prove the worth of this fast-acting, nimble publishing venture, which would be focused on finding the new voices that can lead us out of our political quagmire. Oh, and to promoting the hell out of them.

We envisioned an editorial board made up of progressives and others who want to take action to defend this country from the misguided crew currently in ensconced in the White House: bloggers, representatives from various membership groups, media and political action organizations. But, we needed a project on which to focus our efforts, and to bring the project from idea to reality.

Enter Glenn Greenwald. I was introduced to Glenn's blog, Unclaimed Territory, through a project at Working Assets. Michael Kieschnick and Becky Bond had offered me a fellowship to work with bloggers to help usher them, and their ideas, out into the wider media landscape. To, in effect, help create a new pundit class--one that could speak intelligently on radio and TV and in op-eds about new ideas for getting this country back on track, and for moving us beyond the bitter partisan divide. I thought Michael had come up with a great idea. I knew wanted to see some new faces, and I was sure the country could use that, too. During that 10-week fellowship, I worked with several bloggers and we recently held a media-training day for a number of them in San Francisco. I was proud to meet every last one of them. The strength of their convictions was palpable. Talk about refreshing!

My editorial interest was particularly piqued by Glenn's ability to reach both liberals and conservatives through his writing about the NSA scandal and Bush's radical theories of Presidential power. He is able elevate this discussion beyond liberal and conservative frames, to cut through the morass of political posturing, and to talk about what it means to be a patriot today. On occasion, Glenn has even gotten nods from the mainstream media, when he beat them to various aspects of the story.

I saw in Glenn an author who could meet the fast deadline of an instant book, based on the work he'd already done on his blog. I saw the topic and timing as being right--the need for a strong defense of the Constitution and American values in the face of a presidency run amok. I heard a voice that is worthy of larger audience. And I saw an opportunity to try again, to show that bloggers, progressives and others passionate about defending this nation can drive books onto bestseller lists--and influence the national discourse. Luckily, I got to Glenn before all the agents started calling him, and explained to him how important it is to create this alternative, independent infrastructure, and to build the right marketing channels to ensure bestselling numbers, so that progressive and other new ideas get out into the minds of more Americans.

Glenn saw the power behind this idea and wanted to sign on. Then I went to a number of forward-thinking leaders and asked for their support. Simon Rosenberg stepped up, and offered me a fellowship with his New Politics Institute (of the New Democratic Network) to help develop the idea. And the directors of Working Assets stepped up with the funding and organizational support to make this book a reality. I've joined Working Assets, and this experiment will be ushered into the world by Working Assets Publishing.

As Glenn's book makes its way to reality, I urge you to realize the importance of supporting other important books, too. Like American Theocracy, Crashing the Gate and Hostile Takeover. The better progressive-minded books do in the marketplace, the further these ideas will spread. Right-wingers realized a long time ago the importance of controlling and beefing up sales of their books, so they reach bestselling numbers and dominate news coverage. We cannot stand by and let corporate- and right-wing media continue to control the debate.

A number of independent publishers had bestsellers since 2004, proving that by being creative with new technology and financing, we can compete with the big, corporate publishers--and actually keep the money to be made in progressive coffers, to fund more progressive ideas and authors. We'll be able to take risks on new authors, develop new talents and leadership. What hasn't been proven yet, is what aspects of those models are replicable, and THAT is what part of this experiment is about: showing that quick progressive and cross-over books can RELIABLY be ushered onto the national stage, and impact political debate . If the media won't cover our ideas intelligently, we must create our own successful vehicles to generate discussion.

I'm looking forward to talking further with interested folks. Shant Mesrobian is joining this collaborative team to figure out how we can create the best model for this publishing venture/creative campaign agency, to better usher out our ideas with power and verve--and the commercial success that will lift all progressive boats.

There is much work to be done, but we have to start somewhere, and we invite everyone to participate and contribute ideas and energy. The more input the better. We need to build this thing together. Feel free to email me at jnix@wafs.com.

How Would a Patriot Act?

As readers of this blog know, I have been very excited about a project I have been working on but which I have not been able to talk about. I now can:

Roughly six weeks ago, I was approached by an editor with a proposal to publish a book based on the ideas and arguments which have been the subject of this blog for the last several months. The idea was to get the book to the market quickly in order for it to have as much of an impact as possible on the current, ongoing and now (thanks to Russ Feingold) intensifying debate over the NSA scandal specifically and, even more so, the radical theories of law-breaking power embraced by the Bush Administration generally.

I have been writing the book for the last five weeks and am about 80% done. The book is entitled How Would a Patriot Act? Defending American Values from a President Run Amok. It is going to be released in early May -- roughly six weeks from now, and will be available on Amazon for pre-ordering shortly. Here is the cover:

The principal reason I am so excited by this book is because, as I have said from the time this scandal first emerged, what will determine the outcome of this law-breaking scandal specifically, and the crisis of lawlessness which we have in our government generally, is whether the public realizes how radical and dangerous this Administration has become and demands that it be held accountable. I have always emphatically believed and have repeatedly said that if Americans are truly informed about how radical and extreme this President has become with regard to the powers he claims he possesses, most Americans will find it intolerable.

At its core, this scandal is not and has never been about the scope of eavesdropping powers which the Government ought to have. It is much more significant than that. We face a genuine and profound crisis as a country because we have a President who has continuously exploited the threat of terrorism and engaged in rank fear-mongering in order to expressly claim the power to act without any checks or limits at all -- including, literally, the power to break the law. And he has been exercising that law-breaking power aggressively and enthusiastically in numerous ways, all of which are radically changing our national political character and the system of government that we have had since our founding.

It is that belief in his own monarchical power that led the President to eavesdrop on Americans in precisely the way that our country, thirty years ago, made it a criminal offense to engage in. And the President's illegal warrantless eavesdropping is but one example which arises out of these truly radical and decisively un-American theories of power which this Administration has adopted and put into practice. The Administration's ideology of lawlessness, in every respect, is contrary to the most basic and fundamental values on which our country was founded and which have defined who we are as a nation for the last 225 years.

Rather than pursue the opportunities that were presented to publish this book through a large publishing company, I am, for many reasons, working instead with an independent publisher. They believe in the arguments advanced by the book, have committed sufficient funding to this project to ensure that the book is aggressively marketed and publicized, and are dedicated to doing everything possible to enable this book to have a real impact on the NSA scandal and, more broadly, on the perception of Americans of this Administration's radical theories of power.

The project editor for the book, Jennifer Nix, was the editor responsible for the publication of George Lakoff's book, Don't Think of an Elephant: Know Your Values and Frame the Debate, which was published independently and, as a result of Nix's marketing strategies, became one of the best-selling books of 2004, spending weeks on the New York Times' bestseller list. Jennifer also was the acquiring editor for Crashing the Gate, the new book by Jerome Armstrong and Markos Moulitsas Zuniga. And the editor of Crashing the Gate, Safir Ahmed, is editing my book as well.

There are some costs and sacrifices involved in publishing a book with an independent publisher rather than a corporate publisher. The advance I received was negligible, which means having to spend several months writing a book and then publicizing it with very little compensation. But I really believe that having a publisher who is motivated by the books' ideas and objectives -- and which is devoted to publishing the book quickly and in a way that ensures the maximum impact on the political conversation and on the resolution of these issues -- will produce the best results on every level. It was not a difficult choice.

The primary value in publishing a book this way is that it enables direct communication with fellow citizens about these issues. It has been clear for some time that our national media -- the entity which has as its function informing citizens about what the Government is doing -- is largely dysfunctional. Due to innumerable factors, it simply does not and cannot perform that critical role any longer. Regardless of one's views of the propriety of the Administration's actions, it is beyond dispute that the theories of executive power which the President has adopted are, to put it mildly, a matter of great controversy and great importance. And yet, it is truly astonishing how little Americans know about any of that because the media has barely discussed any of it.

None of those failures is surprising. After all, the single most significant fact of the last 6 years, in my view, is that we are a country which went to war in 2003 with the overwhelming majority of the country -- 70% -- believing in a complete myth: that the leader of the country which we were invading personally participated in the 9/11 attacks. And they continued to believe it even months after the invasion. The media completely failed to expose the falsity of our government's claims or to even minimally inform the country about what was real and what was not. That fact, by itself, is irrefutable proof that we cannot rely on our national media to inform Americans as to what our Government is doing or to expose the dangers of their actions or even the deceitful nature of their statements.

All of these developments signify just how desperately our country needs new and alternative media for citizens to communicate with one another and to be informed about what our Government is doing. The first order of business, in my view, is creating venues for information and analysis which do not depend upon the rotting, corrupted government-media Beltway vortex. The blogosphere is a critical prong in achieving that. So, too, is creating a mechanism for delivering quick-to-the-market books on current issues of controversy which can convey information and inform citizens outside of the distorting lens of the establishment media.

With her work on publication of both Lakoff's book and Crashing the Gate, Jennifer is a pioneer in those efforts and that is one of the primary reasons I found her proposal so appealing. She has written extensively about the value of publishing books independently as a way of creating alternative publishing systems, and she will post here today on her thoughts and strategies in that regard specifically for this book project.

This law-breaking scandal has never been about liberal or conservative political ideology because the Administration's actions, at their core, are really on assault on the most basic American political values -- values which transcend contemporary political disputes between liberals and conservatives. Just as Al Gore arranged for former Republican Congressman Bob Barr to introduce Gore's inspired speech on the dangers of the Administration's law-breaking, we are currently negotiating with a prominent conservative to write the book's Foreword, in part to illustrate that the dangers posed by the Administration's truly radical seizure of unchecked power ought to alarm all Americans regardless of partisan loyalty or ideology.

Ever since the illegal NSA program was revealed, Republicans, most Beltway Democrats, and virtually all of the national media have collectively insisted that this scandal will have no lasting effect, that it will simply fade away because "the public" does not care about any of it. They repeatedly maintained -- even in the face of all available evidence -- that the public supports the Administration's decision to eavesdrop on Americans without judicial oversight and in violation of the law and will not care if the President breaks some laws here and there in order to "protect" them.

But to all but the most jaundiced and corrupted eyes, these issues have always been far too self-evidently significant for any of that to happen. Right before everyone's eyes, the President got caught breaking the law - deliberately and continuously. He ordered the Administration to engage in conduct which the law, since 1978, has made it a criminal offense -- a felony -- to engage in.

And when he got caught, rather than apologize or express remorse, the President defiantly proclaimed that he would continue to break the law because he believes he has the power to act without restraints, including the restraints of the law. And in response, the Congress, controlled by the President's party and long loyal to him, did nothing other than begin to look for ways to protect the President by rendering legal the very behavior which the law makes it a criminal offense to engage in.

All of that is far too extreme, and far too violative of the deeply instilled political values which even those Americans who are otherwise apathetic instinctively believe in, to allow these issues to simply fade away. Despite the oh-so-sophisticated and all-knowing assurances from our pundit class that this scandal would have no effect (other than to somehow actually help the law-breaking President), and despite the concerted efforts of the Congress to block every investigation into what has occurred, this scandal has not faded away. Quite the contrary, as the events of the last week demonstrate quite conclusively, it is stronger than ever.

As I have pointed out many times, scandals which reveal presidential corruption do not unfold overnight. This post I wrote a few weeks ago sums up my views on what can be done and what needs to be done:

One of the many brilliant attributes of our system of government is that citizens really do serve as a meaningful check on government abuses, and they do so in endless, ever-changing ways. To recognize that fact does not require optimism -- just reality.

Throughout our history, Americans have figured out methods for destroying corrupt institutions and smashing even the most ingrained practices and laws -- and when they could not find ways to do so, they invented new ones. Seemingly invulnerable and omnipotent political figures and movements have been destroyed, all as a result of the actions of citizens who have made large numbers of Americans aware of the need to act.

Whatever systems are in place are in place because they were constructed by human beings. Any systems built by human beings can be torn down and replaced just as easily as they were built. There is nothing invulnerable or omnipotent about the Bush movement or the systems which they have erected in order to fuel their agenda. It can be brought down just as easily as others like it have been destroyed.

All that is needed is for citizens to become aware of just how radical and dangerous their conduct is. It’s happening already, and there is no reason whatsoever to convince oneself of the futility of battling against it. Quite the opposite. There is every reason to believe that it is starting to teeter and just needs a good, hard push to fall and shatter.

Even highly unpopular Presidents are afforded the benefit of the doubt when accused of wrongdoing and it requires significant work, which takes time, to persuade the country that the President really has engaged in serious wrongdoing for which serious consequences are warranted. The President has broken the law repeatedly because, incredibly, he believes he has the power to do so. That development in our country requires serious debate. Sen. Feingold's Censure Resolution has catapulted that debate back into the limelight, where it belongs, and it is my hope that this book can help to inform and advance that debate even further.

Various matters

(1) I am posting on Crooks & Liars today, and will link to the posts here once they are up.

(2) Tomorrow (Monday) afternoon, from 2:10 pm to 2:45 pm, Warren Olney's radio show To the Point is having a panel debate on the specific topic of Feingold's Censure Resolution and impeachment generally. I will be one of the guests, along with John Dean, National Review's Ramesh Ponnuru, and Josh Marshall. There may be another guest -- a well-known Democrat who has expressed serious reservations about censure -- but he wasn't yet confirmed as of Friday afternoon. The show is broadcast on most NPR radio stations (a Station List can be found here (click on "Station List" in the left-hand margin)), and can also be heard with streaming online audio here.

There is only one reason this panel discussion (and similar discussions) are taking place again -- because Russ Feingold's Censure Resolution forced back into the news the incomparably important crisis that arises from the fact that we have a President who has claimed the power to break the law. And this happened just as Bush followers thought they had successfully made this whole scandal fade away. Anyone who wants to know what the purpose or value is of Feingold's resolution can start there for an answer.

(3) Josh recently authored a column in Roll Call arguing against the impeachment of George Bush on both substantive and political grounds. Josh says he wrote the column "[s]ince talk of impeachment is in the air" (it is?), and based on that rather precarious premise, Josh announces: "it seems incumbent on all vocal critics of the president to go on the record with their points of view on this momentous question."

I think the Feingold censure Resolution is quite plainly a much more prominent and controversial issue at the moment than impeachment, and Josh in his column doesn't say whether he favors that. Nor has Josh ever said on his blog whether he favors the Resolution. He wrote one post on the topic which began this way: "I think I'm with Kevin Drum on this whole Feingold censure thing." Josh then added: "So 'censure' him. Or don't censure him." So does Josh favor the Resolution or not? Who knows?

Josh does say rather unequivocally that Bush broke the law, and Josh recognizes that Bush claimed that "the law actually doesn't apply to him" (which Josh accurately describes as "being a very big deal"). And he does criticize Democrats for running away so publicly from the Resolution on the ground that it makes Democrats look bad. But it's impossible to tell (because he never says) whether Josh favors censure or not.

While not sharing his views on censure, Josh does step up to the plate to opine on what he apparently perceives to be the raging political controversy of impeachment and says this:

The clearest case for impeachment is one in which the president refuses to follow the law and accede to the Congress’s and the court’s oversight powers. The only solution to such a constitutional crisis would be for the Congress to remove the president from office for violating his oath and committing political high crimes.

But that’s just not the case at the moment because Congress has made little if any effort to rein him in. So impeaching him can’t make any sense because the Congress — in the constitutionally indolent hands of the Republican majority — has made no attempt to oversee the president by constitutional means.

This strikes me as both inaccurate and circular. The Founders recognized that if a President began violating the law, Congress would have no real way to stop him, because the President controls the forces which execute and enforce the law while Congress has no similar force which it controls. Thus, the tool which the Founders gave to Congress to "rein in" a law-breaking President is the tool of impeachment. That is how Congress reins in a President who insists on defying the law.

The premise of Josh's argument seems similar to the premise of the newly introduced Terrorist Surveillance Act of 2006 -- that when the President is caught breaking the law, the way Congress "reins him in" is by enacting another law to (again) limit what the President is doing, perhaps making clear that this time they really mean it. But Congress has already passed a law which limits the President's eavesdropping activities (FISA) and the President is violating that law because he believes, as Josh recognizes, that he has the power to do so. Passing another law is not the way that Congress reins in a President who has seized law-breaking powers. Censuring the President is obviously intended to have that effect, but the only other real remedy which Congress has under our Constitution to "rein in" a law-breaking President is impeachment.

This isn't to say that I think impeachment proceedings should begin, only that Josh's substantive argument against it -- that impeachment is inappropriate even though Bush is violating the law because Congress hasn't tried to "rein him in" -- strikes me as weak and illogical. Congress already reined in the President when it enacted FISA. Once Bush proclaims that he will not abide by legal restrictions on eavesdropping activities -- which, as Josh recognized, he has claimed -- then impeachment (or, more mildly or preliminarily, censure) is the tool which Congress possesses for reining in the law-breaking President.

(4) I posted yesterday on that truly vapid and evidence-free Eleanor Clift column, which claims that the Feingold Resolution is perceived as an act of "political extremism" which shows that Democrats "can’t be trusted with the keys to the country." Digby has even more analysis of that column which I recommend highly. This issue isn't important because Eleanor Clift per se is important. It's important because the arguments she is reciting are the ones which have become tacitly accepted by the conventional wisdom-producing pundit class, and those arguments -- especially when disseminated in unison by the supposedly "liberal" and "conservative" pundits --- do have great influence.

Karl Rove's lips barely move when Eleanor Clift writes her columns

I was hoping not to post again today because I have a lot of work I'm trying to get done, but then I made the mistake of clicking on a link which read as follows:

Eleanor Clift: Dem Feingold Tosses GOP a Life Raft

It really never ceases to amaze how the most aggressive smear jobs on Democrats who take a stand against the Bush Administration almost always come from the allegedly liberal pundits or anonymous Democratic consultants. Clift's column is not worth spending much time on because it doesn't contain any arguments. What makes this column notable is how steadfastly loyal she is to GOP talking points as she mindlessly repeats every baseless slogan and accusation against Russ Feingold and his censure resolution. Her column begins by mouthing the words of every Bush follower in the blogosphere this week:

Republicans finally had something to celebrate this week when Democratic Sen. Russ Feingold called for censuring George W. Bush. Democrats must have a death wish. Just when the momentum was going against the president, Feingold pops up to toss the GOP a life raft.

Right from the mouth of Ken Mehlman and into Clift's pen. There is zero evidence that Feingold's censure resolution has helped Republicans and plenty of evidence that it has not -- beginning with the Republicans' conduct in trying to kill every branch of this scandal from the moment it emerged.

If the NSA scandal were such a great benefit politically to Republicans, they would be doing everything they could to sustain it and keep it in the spotlight, instead of what they've been doing: desperately trying to kill every investigation and sweep it under the rug. Sen. Frist attempted to force an immediate vote on the Resolution before it could even be read, let alone debated, because the last thing they want is for the spotlight to be on the fact that the President broke the law and the GOP-controlled Congress wants to do nothing about it. Is it too much to ask of Clift that she look past the first level of Beltway GOP-furnished conventional wisdom?

It’s brilliant strategy for him, a dark horse presidential candidate carving out a niche to the left of Hillary Clinton. The junior senator from New York is under attack for being too soft on Bush and the war, and most of the non-Hillarys are to her right. There is a vacuum in the heart of the party’s base that Feingold fills, but at what cost?

Russ Feingold is one of the very few national politicians of either party with a reputation for integrity. But people like Clift just whimsically and breezily accuse him of having cynical and base political motives when introducing this Resolution. It can't possibly be because he actually believes that the President's law-breaking is wrong and demands punishment. He can't possibly be sincere in his motives and beliefs. No - he's clearly just a craven political opportunist who did this as a "stunt" for his own political gain. That goes without saying.

The reality is that people like Clift can't believe that anyone acts in accordance with their principles because people like Clift have none, so they assume that that's the case for everyone else. They think that their cynicism and scorn towards principle are the hallmarks of sophistication and savvy when, in reality, it doesn't signify anything other than the fact that they are devoid of beliefs or principles.

Just as John Kerry’s belated effort to stop Judge Samuel Alito’s confirmation to the Supreme Court failed to rally his fellow Democrats, Feingold’s move toward censure has been received like a foul odor, sending Democrats scurrying for the exits. Only two of his colleagues, Iowa’s Tom Harkin and California’s Barbara Boxer, signed on as cosponsors. And for good reason. The broader public sees it as political extremism.

Eleanor Clift is writing in Newsweek that the "broader public" -- as though she knows anything about them -- "sees [the Feingold Resolution] as political extremism." That is a statement that is without an iota of support. She literally just made it up, because she heard Joe Klein saying it and the Democratic consultant geniuses she talks to whispered it in hear ear, so now she knows how the "broader public" thinks about this - even though polling data shows exactly the opposite.

This is the what passes as "analysis" in our national media - insular, baseless chitchat that gets passed back and forth between the same pompous, chronically-wrong pundits and consultants who could literally not be further removed from what the "broader public" thinks about anything.

Just when the Republicans looked like they were coming unhinged, the Democrats serve up a refresher course on why they can’t be trusted with the keys to the country.

Russ Feingold thinks that George Bush should not break the law. He thinks it's wrong that Bush broke the law and believes that Bush should be censured for having done so, as opposed to allowing the President to break the law without consequences.

Therefore, says the liberal pundit Eleanor Clift, this shows that Democrats "can't be trusted with the keys to the country." Who needs Karl Rove when you have her and Joe Klein?

Nor could it have come at a better time for a Republican Party still battered by bad news in the polls. The latest Wall Street Journal/NBC survey, released earlier this week, shows that Bush’s job approval rating at its lowest ever—37 percent—as a majority of Americans lose confidence that the Iraq war will end successfully. The same poll shows a significant uptick in the country’s willingness to accept a Democratic Congress, with 50 percent of those questioned saying they would prefer the party to control Congress.

Could someone tell Eleanor Clift that this scandal didn't just emerge this week when Feingold introduced his Resolution? The controversy over George Bush's illegal eavesdropping has been in the spotlight since December 16 of last year. During that time, Bush's popularity has steadily eroded to an embarrassing 35%. The idea that the NSA scandal is a "life raft" that will save the Bush Presidency is incoherent, vacuous and empirically false. All it is, is conventional wisdom that arose among the scared Democratic consultant and punditry class at the very beginning -- when they counseled Democrats to just let the whole thing go away -- and no matter how many facts disprove it, they are incapable of doing anything but mouthing it over and over and over.

One thing that is conspicuously missing from Clift's vapid screed is what is always missing from people who oppose Feingold's censure resolution and/or who urge that Democrats not oppose Bush's law-breaking - namely, a discussion of the consequences for the country from doing nothing in the face of George Bush's admissions that his Administration has been violating the law and the disclosure that they have adopted radical theories which insist that the President has the power to do so, not just with regard to surveillance but all matters relating to national security. Do any of those things even matter to people who think like Clift?

The Death of Shame in our Pundit Class

(updated below)

With virtually all of the predictions made by proponents of the Iraq invasion having been proven false, with a true strategic disaster on our hands, and with most of the country having concluded that the war was a mistake, war supporters have been desperately searching around for some way to salvage their reputations. On Thursday, John Hinderaker unleashed this self-justifying plea:

In truth, we likely won't know whether the Iraq war was a success or a failure, a good idea or a bad idea, for another twenty or thirty years, when the consequences of the effort not only in Iraq, but throughout the region, become clear. For now, we can only guess.

So even though it looks like everything war supporters said before the invasion was false and the war looks like a huge mistake, we can't actually know for sure until 2 or 3 decades from now, so we should check back with them in around 2026 or so. But that wasn't what Hinderaker - or his fellow Bush followers -- were saying back in April, 2003, a time when they were triumphantly proclaiming instantaneoues victory and insisting that those who opposed the invasion should forever hang their heads in shame because of how wrong they were.

Hinderaker's plea that we won't know for 20 years if the Iraq war was a good idea prompted me to go and read what he was saying in April, 2003, which then led me to the comments he was excitedly pointing to during that time from the likes of Charles Krauthammer, Ralph Peters, Victor Davis Hanson and other similar types who were publicly engaged in all sorts of triumphant chest-beating war dances.

Until you go back and actually read what was being said at the time, you don't really appreciate just how intense and deceitful was the propaganda and falsehoods spewing forth from every corner. People like Victor Davis Hanson and the Powerline buddies were not just wrong in what they were saying, although they were that. And it's not just that their judgment was severely flawed, although it was.

Far worse than that is the fact that they really were living in a world that did not exist -- a fantasy world so plainly free of facts and reality that it is truly disturbing to recall that so much of the country was propagandized into believing it. Going back and reading it really creates the sensation of people who were living in a world that combines the worst elements of Disney World and Pravda. Our experts and pundits were literally describing a world that did not exist and making claims that could not have been any further removed from reality. Put simply, anyone who read them, listened to them or believed them at the time was completely misguided and misinformed about reality.

If there were any intellectual honesty in our political dialogue, people like Hinderaker and Peters and Hanson would be disgraced into silence. The falsity of their factual claims and the monumental error of their judgments are tantamount to a surgeon who removes the wrong organ, or a lawyer who sleeps through a murder trial, or a journalist who invents facts for his stories. Certain errors are so fundamental, embarrassing and reflective of a deficiency in judgment and an lack of trustworthiness that they stay with those individuals as an albatross around their necks for many years -- and rightfully so, because they are so credibility-destroying.

There is real value in examining this record. Despite their humiliating mistakes and deceit, people like Hinderaker, Hanson, Charles Krauthammer and others have not been disgraced into silence; to the contrary, they are still claiming the right to dictate how we proceed with our foreign policy, both in Iraq and beyond. I recently wrote a post at C&L comparing the prescient and wise judgments of Howard Dean regarding the war to the fundamentally false claims made at the time by war proponents, and said this:

This is worth noting not because this is a time for recriminations or because of the satisfaction which one can derive from a celebratory "I-told-you-so" moment. It is critical to focus on who was right about this war because this country, right now, has extremely difficult choices to make with regard to the disaster it has created in Iraq – and the first choice is whose judgment and foreign policy wisdom ought to be listened to and accorded respect.

FAIR (h/t Atrios) recently compiled some truly amazing examples of what our pundit class was saying about the Iraq was in April and May of 2003. Following are some excerpts from those who continue to hold themselves out as military and political experts -- those who insisted back in April, 2003 that war opponents had the obligation to keep quiet and admit their shattering defeat, but who refuse to apply those standards to themselves in light of their horrendous, incredibly destructive errors:

Powerline, April 25, 2003

Victor Davis Hanson for National Review Online suggests that the war against Saddam Hussein may actually have been the "hard part" and that there are many good reasons for optimism about what lies ahead in Iraq and elsewhere in the region.

Powerline, April 22, 2003

The end of the Iraq war has slowed, but by no means stopped, "antiwar" activity.

Brendan Miniter, Assistant Editor, Wall St. Journal's Opinion Journal.com

It's amazing that more than two weeks into the liberation of Iraq--as residents in Basra are cheering British forces and Americans occupy Baghdad's airport and Saddam Hussein's main presidential palace--the antiwar crowd is still spinning a doomsday scenario. But it's getting harder and harder to take seriously the claim that freeing Iraq will make it harder to win the war on terrorism.

Indeed, there's plenty of evidence to the contrary. U.S. forces apparently found chemical weapons yesterday.

Victor Davis Hanson, National Review Online, April 25, 2003

Iran may think it smart to use its fundamentalist agents to undermine the American achievement in Iraq. But look at the newly constituted map, where it suddenly finds itself surrounded by reformist movements. The omnipresence of the United States, twenty years of failure inside Iran, and the attractions of American popular culture will insidiously undermine the medieval reign of the mullahs faster than it can do harm to the foundations of democracy in Baghdad. . . .

We also must keep the projected costs in perspective. Despite the frenzied charges, we probably so far have spent no more $30 billion on the military operations of Operation Iraqi Freedom — not the "hundreds of billions" forecast by alarmists who sometimes slipped into "trillions."

Victor Davis Hanson, National Review Online, April 17, 2003

A fair historical assessment will soon emerge that attributes our victory not to Iraqi weaknesses per se. Rather it was the American ability on the ground and air in a matter of hours to decapitate the command-and-control apparatus of the Baathist regime that alone allowed bridges, oil wells, power plants, and harbors to be saved, and chemical weapons not to be used.

Powerline, April 26, 2003

It is easy enough in nearly all cases to determine who has won a war. However, I do not know of any criteria for determining who has won a peace. No doubt, this is why liberals have recently embraced the phrase. They can't deny that President Bush has won his two wars, and won them resoundingly. But liberals still can make the nebulous, unverifiable claim that he has lost, or will soon lose, the peace.

Powerline, April 21, 2003

Judith Miller, writing in Monday's New York Times, records what could be a breakthrough in the search for illicit weapons of mass destruction.

Some time ago, an Iraqi passed a note to American soldiers saying that he was a scientist who had worked in Iraq's chemical weapons program. The note languished for a while because the troops were fighting and because similar tips had proved to be blind alleys. But a few days ago, a MET Alpha chemical weapons detection team from the 101st Airborne tracked the man down, and he led them to buried chemical weapons components. So far, his story seems to check out--and if what is now being reported is true, it's dynamite.

The scientist stole documents, samples, and other evidence of the program that he worked on, and buried them in his back yard. He says that in the days before the war started, major efforts were undertaken to either destroy, bury or otherwise hide Iraq's illicit weapons. He reportedly has led American soldiers to at least one site where such weapons (or weapons components) are buried.

Powerline, on Dick Morris, April 15, 2003

"Never before have Americans had the chance to watch the establishment media while also seeing events unfold for themselves, live, on television. Our collective understanding of the dissonance between the two is breeding a distrust of the major news organs that will likely long outlast this war."

Morris' view is that establishment media like the New York Times, CBS, NBC and ABC have been shown to be absurdly pessimistic and wildly inaccurate:

"Each morning, we sat reading our copy of The New York Times, The Washington Post or the Los Angeles Times and ruminated on their prophecies of doom and quagmire. Then we looked up to see, on television, correspondents actually embedded with our troops reporting quick advances, one-sided firefights, melting opposition and, finally, welcoming crowds."

Hinderaker in particular posted joyous and glorious photograps almost on a daily basis showing how our trimphant troops were welcomed as liberators by Iraqis, and they usually included captions from Hinderaker like this, from April 30, 2003:

With the war in Iraq winding down, the daily photos in Army Times include scenes of joyful homecomings.

Charles Krauthammer, April 19, 2003

"The only people who think this wasn't a victory are Upper Westside liberals, and a few people here in Washington."

Given all of this profoundly false misinformation they were being fed, it is no wonder that the vast majority of Americans -- both Democrats and Republicans -- strongly supported the war. As Powerline celebrated back then:

The latest Fox News poll data are out, based on interviews conducted April 8-9. No surprises; 81% support the military action in Iraq, and 68% strongly support it. The President's approval rating is positive by a 71% to 20% margin. General satisfaction with the progress of the war and with our military is no surprise.

And Hinkeraker's comment from April 15, 2003 reminds us of the disgusting climate which these deceivers created -- where those who (accurately and wisely) questioned the war or disputed the war proponents' false propaganda were stigmatized with the worst labels possible:

I don't think we're at the point yet where Bill Clinton can officially be called a traitor, but he certainly is making a career out of giving aid and comfort to our enemies.

It is truly difficult to understand how these same people can continue to pompously opine on these matters, and still claim an entitlement to be listened to, without at least confessing their errors. The magnitude of misinformation and deceit in which our country was drowning during that time is difficult to convey. And from the fact that 70% of the country had been falsely persuaded that Saddam personally participated in the planning of the 9/11 attacks to the way in which our media mindlessly swallowed and regurgitated outright military fiction such as the Jessica Lynch fantasies, this carousel of shame and deceit is virtually endless.

There are not many episodes in our national history which can compete with the invasion of Iraq in terms of the profound failures of every one of our institutions -- failures which allowed this sort of deceit and detachment from reality to persist. But until we identify those responsible and end the influence which they continue to exert over our political dialogue, we will continue to be at risk of following them down these same deceitful, destructive paths.

UPDATE: One of the points to emphasize here, which may not have been sufficiently clear, is that these war advocates were not content to simply run around clucking about how right they were, but were insistent that those who oppose the war admit their error and be ashamed. Here is a particularly illustrative example from Glenn "Instapundit" Reynolds, on April 11, 2003 (h/t Zack and Tom Tomorrow):

"FOR SUCH AN ADVANCED SPECIES, THEY SURE KNOW HOW TO RUB IT IN."-- Marge Simpson

Yeah, there has been a lot of pro-war gloating. And I guess that Dawn Olsen's cautionary advice about gloating is appropriate. So maybe we shouldn't rub in just how wrong, and morally corrupt the antiwar case was. Maybe we should rise above the temptation to point out that claims of a "quagmire" were wrong -- again! -- how efforts at moral equivalence were obscenely wrong -- again! -- how the antiwar folks are still, far too often, trying to move the goalposts rather than admit their error -- again -- and how an awful lot of the very same people who spoke lugubriously about "civilian casualties" now seem almost disappointed that there weren't more -- again -- and how many people who spoke darkly about the Arab Street and citizens rising up against American "liberators" were proven wrong -- again -- as the liberators were seen as just that by the people they were liberating. And I suppose we shouldn't stress so much that the antiwar folks were really just defending the interests of French oil companies and Russian arms-deal creditors. It's probably a bad idea to keep rubbing that point in over and over again.

Nah.

At least as far as I know, Glenn Reynolds has never corrected any of this, confessed error, or apologized to his readers for so drastically misleading them.

Trying to deliver the fatal blow to FISA

By Anonymous Liberal


Having now had a chance to read through Senator DeWine's proposed "Terrorist Surveillance Act," I agree completely with Glenn and Marty Lederman: I see nothing in the bill that gives these newly created Congressional subcommittees anything more than the power to request information.

The Act does not appear to grant the committees the authority to approve or disapprove of surveillance decisions, even on a program-wide level. If the members of these committees were to disapprove of what of the President was doing, their only option would be to try to convince Congress to amend the law (which, as Marty points out, would require a veto-proof 2/3rds majority). And the committee members would have to perform this miracle without disclosing to their colleagues any of the information they learned about the program (or risk 15 years in prison). And even then, the President would--in all likelihood--simply reassert his supposed power to violate the law. And around and around we go.

This bill actually makes Arlen Specter's bill seem serious by comparison. At least under Specter's bill, the program would be subject to meaningful Fourth Amendment review.

Glenn and Marty have already done a great job picking apart DeWine's bill, so I won't repeat what they've said. There is, however, one provision in the bill that neither of them touched upon that I think is particularly troubling. Section 2(f)(2) of the bill provides as follows:

USES OF INFORMATION.--No information acquired from electronic surveillance conducted pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes, including the provision of a factual predicate for an order for electronic surveillance under section 104 of the Foreign Intelligence Surveillance Act of 1978 . . . and use in a criminal proceeding consistent section 106 of the Foreign Intelligence Surveillance Act of 1978.

This is exactly the sort of provision I feared would be included in this bill. It is the fatal blow to FISA. To understand why this is the case, I refer you back to the February 9 Washington Post article that described the compromise the Bush administration had reached with the presiding judge of the FISA Court regarding the warrantless surveillance program.

The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.

The article explains that this was an attempt by the presiding judge--who was the only member of the court informed about the warrantless surveillance program--to "shield the court from tainted information." The judges recognized that if information gained via warrantless surveillance could be used to secure a warrant, it would make a mockery of the entire statutory scheme. The compromise the Court reached with the administration was an agreement that information obtained via the warrantless surveillance program could only be used for early detection purposes--which is the reason the administration gave for needing to circumvent FISA--and never to secure a warrant or as evidence in court.

The DeWine bill--as I feared it would--eviscerates this judicially imposed firewall. Section (f)(2) of the bill explicitly authorizes the use of this tainted information in future warrant applications and criminal proceedings. In other words, this bill is not just a legalization of the status quo; it is actually far worse than the status quo. This president has declared that he has the power to conduct any surveillance he deems necessary, regardless of what the law says. But his ability to utilize the fruits of that surveillance is limited by the courts. The president cannot force the courts recognize such evidence as legitimate or admissible. But Congress can. DeWine's bill does just that, and in doing so, it eliminates the last meaningful constraint on the use of warrantless surveillance.

The new Nixon Law is introduced -- that which the President does is legal

(updated below)

Michael DeWine yesterday introduced what he is calling The Terrorist Surveillance Act of 2006 (.pdf), co-sponsored by those independent maverick Republicans Olympia Snowe, Chuck Hagel and Lindsay Graham. The purpose of the bill is to render legal the illegal warrantless eavesdropping program ordered by the President more than 4 years ago. This bill is based upon the Richard Nixon Theory of Executive Infallibility, famously expressed in Nixon's 1977 interview with David Frost:

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

With that Presidential Infallibility premise firmly embraced by the independent Republican mavericks, we are presented with the Terrorist Surveillance Act. This is what it does:

It expressly empowers the President, in Section 2(a), to "authorize a program of electronic surveillance without a court order for periods of up to 45 days.” The President can simply renew the program every 45 days by certifying that renewal of the program is appropriate (Section 4(b)(2)). Contrary to initial press reports and to this morning's article in The Washington Post, the newly created Intelligence Subcommittee (at least as I read the bill - see below) has no power to approve or reject any warrantless eavesdropping programs. Its only purpose is to be briefed periodically on the eavesdropping activities undertaken as part of the program.

In sum, the bill authorizes and makes legal precisely the illegal conduct in which the Administration has been continuously engaging since September or October of 2001. The Administration claims that it reviews its warrantless eavesdropping every 45 days, so that's precisely what the bill authorizes. Or, as Richard Nixon says: "when the president does it that means that it is not illegal."

Here are some additional observations about the bill:

(1) As permissive as it is, this bill still purports to impose minimal limits on the power of the President to eavesdrop, but the whole crux of the NSA scandal is that the President believes that Congress has no power to limit what he can do. Thus, what conceivable rationale is there for Congress to enact laws purporting to impose limits on what the President can do when the President has made clear he will break those laws if he decides he wants to? This bill merely amends FISA ( by significantly loosening its requirements), but the President still says he has the right to violate FISA, so what is the point of amending a law which the President will violate when he wants to?

This is a completely fruitless and absurd exercise to engage in without resolving the question of the President's claimed law-breaking powers. In reality, this is the only point worth making. Laws passed by Congress which are designed to place limits on the President's actions are worthless because the President has claimed the power to ignore those laws. And we know this both because he has said so and because he has been ignoring them. All other discussions about this bill or other bills are just academic as long as the President claims, as he does, the power to break the law.

(2) The bill allows warrantless eavesdropping programs where there is "probable cause" to believe that one of the individuals whose communications will be intercepted as part of the program is someone “working in support of a group or organization” deemed to be a terrorist group (Section 2(a)(2)). It does not require case-by-case probable cause, merely that there be probable cause that some (but not all) of the intercepted communications under the program involve individuals affiliated with (or "working in support of") terrorist groups. Thus, a program which intercepts the communications of totally innocent people with no connection to terrorism is perfectly fine as long as the program also intercepts communications of someone who does have such connections.

(3) The President is allowed to intercept the communications not only of individuals who are agents or affiliates of a terrorist group, but also anyone who is deemed by the Administration to be “working in support" of such an organization. The bill provides no definition of what one has to do in order to be deemed to be "working in support" of a terrorist organization. In order to rectify the obvious problem that the Administration's political opponents are routinely accused of "working in support" of terrorists -- and would therefore fall within the scope of whose communications can be intercepted -- the bill provides this impotent limitation under Section 2(b)(1):

Electronic surveillance carried out pursuant (to this law) . . . shall not be conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States

Presumably, the idea behind this clause is that it prevents the Administration from eavesdropping on political opponents and domestic political groups solely by virtue of the views they express, because to be considered someone who is "working in support of" terrorists, one has to do something other than express opinions protected by the First Amendment. But this clause has so many holes as to be completely worthless.

Amazingly, the bill actually authorizes electronic surveillance based substantially on someone's political views (which would be deemed to be "in support of" terrorists), just as long as those views are not the sole basis for interceptions the person's communcations. Thus, if someone gives a speech which the Administration believes is "pro-terrorist," and then has a meeting that the Administration thinks is suspicious, the person's communications could be intercepted under the bill.

And whether even political opinions which are deemed to be "pro-terrorist" are protected by the First Amendment is something that could be disputed (not reasonably disputed, but disputed nonetheless). I have no doubt the Administration believes, and would simply decree, that "pro-terrorist" opinions can be the sole basis for eavesdropping because they are not "protected by the First Amendment."

Critically, this bill defines who the Administration can eavesdrop on without obtaining a warrant. That means that all of the determinations as to who qualifies to be eavesdropped on are no longer with a court, but with the Administration to make unilaterally. The bill allows eavesdropping on anyone deemed by the Administration to be "working in support of" terrorist groups. It expressly allows First Amendment activities to be taken into account and even be the substantial basis for such a determination. In essence, then, the bill thus vests in the Administration the unchecked power to eavesdrop on whomever it wants.

(4) As indicated, under this bill, the Administration does not need any approval from any court or committee to engage in warrantless eavesdropping. It need merely certify on its own that such eavesdropping meets the law's criteria, and then report to the subcommittee once every 6 months (or when the subcommittee requests a briefing) on what it is doing (Section 6(c)).

There is no mechanism for the Subcommittee to take any action if it believes that the eavesdropping power is being improperly or illegally exploited. Worse, the bill includes extremely onerous penalties for anyone who discloses any information "relating to" the eavesdropping program (Section 8).

While this draft does not include penalties for reporters, it would make it a criminal offense for a member of the Subcommittee to publicize illegal or abusive eavesdropping on the part of the Administration. Thus, while the Administration is required to brief the Subcommittee on its eavesdropping activities twice a year, the Subcommittee has no power to take any action to stop abusive eavesdropping and its members would even be subject to criminal penalties if they disclosed anything it learned -- including illegal eavesdropping on the part of the Administration.

(5) A few miscellaneous provisions worth noting:

• the bill requires that the targeted intercepted communications must involve one person who is not within the United States (Section 2(a)(3)), but it expressly allows interception of purely domestic communications as part of any eavesdropping program as long as there is “not a substantial likelihood” that the intercepted communications are domestic;
  

• Under Section 2(e), “the Attorney General may direct a specific provider of communication services or common carrier” to take any action necessary to effectuate the surveillance. Thus, telephone companies and any other communication providers would be required to obey orders from the Attorney General to take any steps the Government directs to ensure that it can intercept communications;
  

• Under section 5(b), the Administration is required to obtain a FISA warrant for eavesdropping if it decides that it can get a FISA warrant. If it does not so decide, then it is free to eavesdrop without a warrant for as long as it wants, as long as it renews its own authority every 45 days -- just like it has been doing.

The Washington Post has an interesting analysis of the political conflicts still very much raging among Republicans over this bill specifically and, in general, how this scandal will be resolved. Arlen Specter has expressed unequivocal opposition to the bill and "particularly objects to letting the government 'do whatever the hell it wants' for 45 days without seeking judicial or congressional approval."

Unsurprisingly, Pat Roberts has the opposite concern: that the bill commits the Most Grievous Sin of purporting to place limits on the Power of the Commander-in-Chief, something which, to Roberts, is intolerable for our country. He said: "I am concerned that some of the procedural requirements included in the bill may limit the program's effectiveness."

And Jay Rockefeller took the principled, resolute stand for which he has become so widely admired. He said through a spokeswoman that it is "too soon to consider legislation until the oversight subcommittee can answer critical questions about the program."

One last point to note. The Washington Post story contains this summary of the bill, which seems to me, upon reading the bill only for the first time this morning, to be inaccurate:

The bill would allow the NSA to eavesdrop, without a warrant, for up to 45 days per case, at which point the Justice Department would have three options. It could drop the surveillance, seek a warrant from FISA's court, or convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance "is necessary to protect the United States," according to a summary the four sponsors provided yesterday.

As indicated, nothing in the bill (as far as I can tell) actually requires the Administration to "convince" the Subcommittee of anything. To the contrary, Section 4(b) expressly states:

(2) CONTINUATION - If the President determines under Paragraph (1) to continue the Terrorist Surveillance Program, the President, through the Attorney General, may continue to the program for an additional 45 days, subject to the requirements of section 2(a)."

Section 2(a) merely defines the scope of whose communications can be intercepted, which means that the bill plainly empowers the President to authorize renewal of the program unilaterally, without needing the approval of anyone. If someone thinks the Post's interpretation is right that the Administration has to "convince" the Subcommittee to continue eavesdropping after the initial 45 day period, I'd be very interested in hearing the basis for that.

This bill reflects quite vividly where we are as a country. The President got caught breaking the law. He claims he has the right to do so. And the Congress, in response, refuses to investigate what the President did, but instead, seeks to find a way to pass a new law which it hopes the President will decide to comply with.

UPDATE: Marty Lederman agrees with my reading that -- contrary to the inaccurate reporting by The Washington Post -- this bill would not require the Administration to "convince" the Subcommitee of anything in order to renew the warrantless eavesdropping after 45 days. All that is required is that the Administration submit to the Subcommittee a certification that renewal is warranted under the criteria set forth in the bill, but the Subcommittee is without any power of any kind to reject or prevent the Administration from engaging in whatever warrantless eavesdropping it wants. As Marty says:

The Administration would not be required to justify its program to the legislators, nor to "convince" them of anything. And the Subcommittees could not, of course, do anthing to stop the program, short of persuading Congress to enact a veto-proof amendment to this law.

It's amazing how frequently wrong the media is about about the most important parts of the stories they report on. Whether or not the Administration is required under this bill to obtain permission of the Congress to continue to engage in warrantless eavesdropping is pretty crucial to the story. There's just no excuse for the Post to tell its readers that this bill requires such approval when it just doesn't.

First poll - Americans support Censure Resolution

This is such huge news that I have to put it in its own post even though I just added it as an update to the post below. The Censure Resolution -- which is a great political boon to Republicans, massive self-destruction by Democrats, the greatest political blunder in 100 years, and the life raft that will single-handedly save George Bush's drowning presidency -- is already supported by a plurality of Americans, 46% to 44%. According to the first poll on censure, from the American Research Group:

Do you favor or oppose the United States Senate passing a resolution censuring President George W. Bush for authorizing wiretaps of Americans within the United States without obtaining court orders?

All Adults - 3/15/06

Favor - 46%
Oppose - 44%
Undecided - 10%

Based on 1,100 completed telephone interviews among a random sample of adults nationwide March 13-15, 2006. The theoretical margin of error is plus or minus 3 percentage points, 95% of the time.

Already, a plurality support the Censure Resolution, and that's with just one person -- Russ Feingold -- advocating it, and Democrats running away from it. Think of what those numbers will be if Democrats stand united, with some Republicans, and forcefully explain why we cannot allow the President to break the law with impunity.

I have said more times than I can count that Americans have deeply instilled within them the value that nobody is above the law, including the President, and that it is hubristic, arrogant and intolerable for anyone to claim the right to break the law, no matter the intentions. Every poll has shown considerable opposition to this law-breaking despite very little leadership on this issue. What more do Democrats want than this poll? Go forth and censure.

A Tale of Two Scandals

(updated below -
including with first poll on censure)

By Anonymous Liberal

Compare these two headlines:

March 15, 2006: Democrats Beat Quick Retreat on Call to Censure President

March 15, 1994: Open Season on Clinton's Veracity: What the Whitewater Fuss Is About

Here's an excerpt from the 1994 article:

Q. Is President Bill Clinton in trouble?

A. Politically, he is in big trouble. A growing number of Americans think he did something wrong or illegal in the so-called Whitewater affair, but they're not sure what. Republicans are maintaining a drumbeat of criticism and demanding hearings in Congress. Journalists are scratching for every shred of new material.

In short, it is open season on Bill Clinton's veracity, even though critics can only speculate on what he might have done. If the storm does not abate, Democrats may be hurt in the November congressional elections.

The article also notes that:

No evidence has yet emerged of unlawful acts by the president or his wife, Hillary.

So, as of March 1994, no one seemed to understand what Whitewater was about and there was no evidence of any wrongdoing on the Clintons' part. Nevertheless, the Republican minority in Congress had created such a ruckus over the issue that the Clinton administration, under pressure, had appointed a special counsel to investigate (in January 1994). A few months later, Republican pressure led the Banking Committees of both the House and Senate to launch investigations into Whitewater. And, in case you're wondering, throughout this entire period the president's approval rating was never lower than 50%.

Well, the rest is history. The Republicans badly miscalculated. Their accusations of presidential wrongdoing made them appear "extreme" and alienated swing voters. The GOP was thoroughly crushed in the 1994 midterm election and has never been heard from since.

Oh wait, you mean that's not what happened?

Seriously, though, let's compare the situation in 1994 to the one the Democrats face today:

• Unlike Whitewater--which involved financial dealings that took place long before Clinton took office--the NSA scandal involves activity that occurred while President Bush was in office (indeed it's ongoing).
  
  

• Unlike Whitewater, the NSA scandal is easy to understand. Whitewater was so convoluted that even the press didn't understand it.
  
  

• Unlike Whitewater--where there was never any evidence of wrongdoing on Clinton's part--President Bush has admitted to authorizing the exact type of surveillance that FISA explicitly criminalizes.
  
  

• Unlike Whitewater, polls indicate that a majority of Americans disapprove of what the president is doing, and without any real effort by the Democrats to educate the public. Polls during the Whitewater affair were driven solely by unified Republican criticism; no one even understand Whitewater well enough to form an opinion on their own. If Democrats were to "beat the drum" on this issue, as Republicans did in 1994, the poll numbers would only improve.
  
  

• And, finally, unlike Whitewater, Democrats are faced with a president whose approval rating is only 33% according to the latest Pew poll. That's a full 17 points lower than Clinton's approval rating at this point in 1994 (and his approval rating was still in the mid to upper 40s at the time of the November 1994 midterm election).

Despite all this, Democratic strategists continue to worry about calling any attention to the President's illegal activities. They worry that supporting Feingold's resolution will unify Republicans and cause them to rally around the President. As if Republicans running for re-election are eager to associate themselves with a guy who's polling at 33%. And if they do, good. Let them tie themselves to that sinking ship. Proximity to Bush can only damage them at this point.

I'm sympathetic to the fact that many Democrats were apparently caught off guard by Feingold's announcement. But that bell cannot be un-rung at this point. The issue is out there, and it has to be addressed. The Democrats can either jump on board and find their collective voice on an issue of unparalleled importance, or they can succumb to irrational fear and play into every negative stereotype about their party. The choice is simple.

UPDATE (by Glenn): Steve Benen reports on a couple of articles from Lincoln Chafee's hometown paper in which Chafee offers some fairly strong praise for the Censure Resolution (he says he's not yet ready to say he'd vote for it, but does believe what Bush did was illegal and that some remedy is needed). Even though it's Chaffee, it's still a Republican Senator saying unequivocally that Bush broke the law and that he's open to censure - a lot more than most Democrats are saying.

Even if it's just one Senator at a time, the process gives a feel of some momentum to censure, keeps it constantly in the news, and at some point could reach a critical mass where most Democrats are required to come out and support it.

And John Cole favorably references this morning's New York Times article claiming that the NSA scandal is good for Republicans because it's supposedly energizing their base, a claim I responded to here. John Aravosis offers some good insight into the "reporting" behind that article.

UPDATE II: This is huge news. The Censure Resolution -- which is a great political boon to Republicans, massive self-destruction by Democrats, the greatest political blunder in 100 years, and the life raft that will single-handedly save George Bush's drowning presidency -- is already supported by a plurality of Americans, 46% to 44%. And that's with just one person -- Russ Feingold -- advocating it. Think of what those numbers will be if Democrats stand united, with some Republicans, and forcefully explain why we cannot allow the President to break the law with impunity.

Even better, the poll overall seems favorable to Bush, since it lists his approval rating at 38% -- higher than the 34-36% which several other polls have reported it.

Cornered rats

There is a palpable increase in the level of extremism and desperation among Bush followers as the Commander in Chief's approval ratings fall lower and lower and as the views which Americans have of both him and his party become more hostile. This is going to be a significant dynamic -- as their power slips further and further away, Bush followers are going to resort to increasingly radical and rage-fueled measures to keep it. Here are just a couple of illustrative examples in the past 24 hours:

(1) Paul at Powerline calls for the impeachment of Supreme Court Justice Ruth Bader Ginsburg. Powerline's John complained about a speech Ginsburg gave in South Africa in which she explained the reasoning as to why Supreme Court Justices, in extremely limited circumstances, cite foreign law in their judicial opinions. John proclaimed the speech to be "reprehensible" and "far removed [] from American laws and traditions." Paul, however, thought that she should not only be criticized, but punished:

It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.

Impeaching disobedient federal judges is definitely something that is on the minds of Bush followers. At the confirmation hearings of Sam Alito, Sen. Coburn questioned Alito on whether he thought a judge who referenced foreign law in a judicial opinion could be removed from office under the constitutional "good behavior" clause. Coburn said: "I very strongly and adamantly feel that it [citing foreign law in a judicial opinion] violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position."

All of this is precisely the danger which Sandra Day O'Connor warned about in a speech she gave this month:

Sandra Day O'Connor, a Republican-appointed judge who retired last month after 24 years on the supreme court, has said the US is in danger of edging towards dictatorship if the party's rightwingers continue to attack the judiciary.

In a strongly worded speech at Georgetown University, reported by National Public Radio and the Chicago Daily Law Bulletin, Ms O'Connor took aim at Republican leaders whose repeated denunciations of the courts for alleged liberal bias could, she said, be contributing to a climate of violence against judges.

Ms O'Connor, nominated by Ronald Reagan as the first woman supreme court justice, declared: "We must be ever-vigilant against those who would strong-arm the judiciary."

That's what the world of Bush followers looks like. Reporters should be thrown into prison. Citizens should be removed from political events for wearing political t-shirts. The President has the right to break the law for our own good. Politicians who criticize the Administration are traitors and should be imprisoned, or worse. And Supreme Court Justices should be impeached -- or worse. Does any of that sound like America to you?

And, oh - it's vital that we fight The Terrorists so that we don't lose our freedoms. And the principal objective of our foreign policy is to run around teaching other countries how to be democratic and free.

(2) In a post condemning Feingold's censure resolution, Jeff Goldstein predicts that the U.S. is headed for another civil war -- at least he hopes so:

But then, today’s liberal-Democrats are nothing but opportunistic and increasingly reprehensible tin-plated Macchiavellians; to many of these people, rhetoric trumps truth; spin is paramount, and power is all.

Never before in my lifetime did I find it even remotely possible that our country could fight another civil war. But I’m beginning to think that a (non-violent) civil war is coming—and that, frankly, it needs to happen. How it transpires, I have no idea—though I suspect migration patterns and a strong move to re-affirm federalist principles could provide the groundwork.

The sentiments underlying Jeff's hopes for a civil war are found in the Comments section. In response to a commenter of his who pointed out that yet another formerly pro-war Bush follower (Greg Djerejian at Belgravia Dispatch) has acknowledged his error in supporting the war, Jeff relieved himself with this outburst:

Me, I say fuck it. Surrender. I’m tired of hearing all the bitching and whining from those who, had there been a 24 hour news cycle and a media like we are now blessed with, would have called for us to pull out of WWII on a thousand occasions. Which is cool. I look great in ash.

Jeff thinks he's going to be zapped into ash if we withdraw from Iraq. For people who have been driven to that level of personal fear and irrationality, is it really a surprise that they will start screaming for the removal of federal judges, the imprisonment of investigative journalists, and "another" American civil war - just for starters?

George Bush's Presidency is disintegrating in front of our eyes. And the Republican Party which he has dominated and controlled for the last five years is extremely weak and fragile. But they are not going to just fade quietly into the night.

Many of them have become convinced -- or convinced themselves -- that it is literally a matter of their immediate and personal survival that the country be controlled by Republicans devoted to the neoconservative mindset. Many of them actually believe that if those who deviate from that worldview gain political power, that they will be irradiated or blown up by Al Qaeda. And then still others are just so filled with rage and contempt for "liberals" (meaning anyone who is not a Bush supporter) that those sentiments are, by themselves, sufficient to push them into extreme and irrational thought as they lose more and more power.

Bush followers first gained power as part of an ugly and raucous fight. There will be few limits on what many of them will be willing, and eager, to do in order to hold onto it. Removing dissident judges, imprisoning political opponents, and calling for a "civil war" is a nice start.

A stirring defense of indecision and inaction

(updated below)

Since Democratic Senators are afraid to talk about Sen. Feingold's censure resolution, Kevin Drum provides a public service by trying to explain and defend the "rationale" for Democrats not to support the resolution. Since many people have been having a hard time fathoming what possible rationale could motivate Democrats not to support Feingold's resolution, Kevin's post is worth examining in order to gain some insight into that thought-process.

Kevin -- just like the Democratic Senators whose evasiveness and indecision he appears to admire -- never actually says whether he favors the censure resolution or not. Instead, he begins by dismissively assuring us that he has no substantive problem with censuring Bush ("Sure, censure away. God knows Bush deserves it"), only to then give one reason after the next why Democrats shouldn't censure Bush. Kevin begins his argument with a moving declaration of defeat, followed by an inquiry into the "theatrics" of Feingold's opposition to George Bush's law-breaking:

Second, politically: I'm not so sure on this score. Anytime a congressman introduces a measure that's certain to fail, it's done for reasons of political theater: to make a point, to get some attention for an issue that's being ignored, or to reach out to some constituency or other. So the relevant question is: is this good political theater?

Kevin's assurance that Democrats will lose is nice conventional wisdom (and the standard beginning premise for many Democrats), but it's actually completely baseless. If the public became convinced as part of the debate that is finally happening that the President broke the law and that such law-breaking is intolerable, does Kevin actually think that it's impossible to find 6 Republican Senators to vote for the Resolution? Congressional Republicans defied Bush on the port deal for only one reason: because public opinion demanded it.

If public opinion begins to move even more than it already has to the view that Bush broke the law, it is far from certain that the Censure Resolution will fail. As I've noted many times, polls showed for two consecutive years that the public thought Watergate was a meaningless scandal and Nixon's popularity remained sky high throughout those years. The arc of that scandal ended up changing only because tenacious politicians and journalists continued to pursue the story and the public finally became educated and angry about it. If Democrats had followed Kevin's advice in 1972, Richard Nixon would have retired as a popular two-term President.

But even if the Censure Resolution ultimately fails, the rationale for pursuing it is self-evident. Kevin frequently frets about (among other things) the fact that Democrats are perceived as being weak. The reason for that is because Democrats often are weak, precisely when they do things like abandon their own Senators and refuse to take a principled stand against a President who got caught breaking the law.

People like Kevin -- who believe that Democrats must "prove" to the country that they can be strong -- should most understand the value in having Democrats take a stand regardless of whether they ultimately prevail. Strong and resolute people fight. Weak and spineless people run away from fights -- or fight only when their victory is guaranteed in advance. The Democrats have been running away from fights for five years now based on the Kevin Drum theory that fights are only worth fighting if you know in advance that you will win. It is beyond irrational to think that the Democrats are going to look strong by simply crawling away meekly and allowing George Bush to break the law.

Anyone with doubts can just ask themselves: Who appears stronger and more resolute right about now -- Russ Feingold or the Democrats described by the Washington Post and New York Times as literally hiding behind each other to avoid reporters and beating a full "retreat"?

Kevin, after arguing that Harry Reid's shutdown of the Senate last year was "good theater," continues:

Conversely, it's not clear what Feingold hopes to accomplish with his censure motion. Bush's shortcomings are already getting plenty of attention, so he's not galvanizing any new media attention. He obviously didn't bother telling his fellow Democrats about his plan, which has had the result of making the party look muddled and stupid. And Republicans, far from being nonplussed by his censure motion, are having a field day with it.

There are so many sad and destructive myths all packed into this one little paragraph. First, Kevin seems to be suggesting that because some of Bush's "shortcomings are already getting plenty of attention," there is no reason to bother spending energy on the fact that he broke the law when engaging in warrantless eavesdropping on Americans. That's like saying that everyone already knows that the guy down the street is a cheapskate, so why bother calling the police and reporting his burglaries and muggings?

What is a more serious political crisis than having a President who believes he has the power to break the law and who exercises that power repeatedly and enthusiastically - and who, by the way, is still defiantly breaking the law as we speak? What possible rationale could exist for passing up the opportunity to educate Americans that George Bush is breaking the law and claims he has the power to do so?

Second, whether Feingold told other Senators about his resolution in advance is not confirmed one way or the other, but even if he didn't - so what? Kevin seems to be arguing: the President broke the law and it would be OK if we condemnend him for it, but Russ Feingold breached some Senatorial courtesy so we should just forget about the whole thing. To describe that argument is to illustrate its absurdity.

Third, Kevin claims that Republicans are "having a field day" with the Censure Resolution. That's true. They are. And why is that? Because other Democrats, like Kevin, are transparently afraid to support it. The mockery from the Republicans is not about the Censure Resolution but about the fact that most prominent Democrats seem petrified to death of confronting George Bush even when he gets caught breaking the law. That conduct mocks itself.

As usual, Kevin internalizes false Republican propaganda by believing that Republicans love this scandal and think they can benefit from it. But the Republicans' conduct since this scandal began proves that the opposite is true. They tried to kill every investigation. They have tried to sweep it all under the rug. And just this week, Sen. Frist tried to force an immediate vote before anyone had a chance to even read, let alone debate, the Resolution, precisely because the last thing Republicans want is the spotlight on the fact that the President broke the law and the GOP-controlled Congress is doing nothing about it.

Republicans began having a "field day" with this issue only once it became clear that Democrats would be guided -- yet again -- by the instincts Kevin loves and would equivocate and say nothing because polls didn't guarantee them a sweeping victory in advance. If Democrats had stood with Feingold and forcefully articulated to the country why this behavior on the part of the Administration presents such a severe crisis -- or if they do that now -- the only ones having a "field day" will be those Americans who believe in the rule of law.

Kevin concludes his stirring defense of inaction and indecision with this "postscript":

It's this: all the people complaining about Democratic senators who are waffling on Feingold's motion even though they voted to censure Bill Clinton need to lighten up. As I hope everyone knows, the censure motion against Clinton was an attempt to derail the impeachment proceedings, not a genuine expression of censure. And Feingold, as I hope we also remember, was the only Democratic senator to side with Republicans and refuse to vote for dismissal of the impeachment charges. So let's keep the holier-than-thou stuff down to a dull rumble, shall we?

Kevin says that he "hope(s) everyone knows" that "the censure motion against Clinton was an attempt to derail the impeachment proceedings, not a genuine expression of censure. " I hope nobody "knows" that, because it's just false. As Elton at BusyBusyBusy points out:

Commenter markbernstein suggests that Sen. Feinstein's proposed censure resolution against President Clinton should not be held against her because it was offered as an alternative to impeachment. Alas, this was not the case. A completely different censure resolution proposed by House Judiciary Committee Democrats in early December 1998 was, in fact, intended to substitute for impeachment (it was voted down in committee). But the quotes above are from a resolution of impeachment censure Sen. Feinstein attempted to introduce on January February12, 1999, after President Clinton's impeachment had already ended in acquittal.

I'll look for Kevin's correction on that. Beyond that error, Kevin's attempt to smear Feingold by pointing out that he was the only Democrat to vote against dismissal of the impeachment proceedings against Clinton - as though that makes Feingold some sort of a hypocrite - is truly incoherent. Feingold voted against dismissal (and then voted in favor of acquittal) because he wanted to hear the evidence before deciding what he thought about the charges. That vote reflects the same exact values as underlies his Censure Resolution -- namely, a respect for the rule of a law and a steadfast belief in his principles regardless of political pressure.

Feingold's actions in each case couldn't be more consistent. The hypocrites are those who favored censure for Clinton's "inappropriate relationship" but can't get themselves to even talk about censure for George Bush's deliberate and ongoing illegal eavesdropping on Americans. Although Kevin can't think of any reason for Democrats to support the censure resolution, the reason is really quite obvious and compelling -- the core principles of our constitutional republic are threatened by the seizure of the President of the power to break the law, and anyone committed to their country and willing to fight for it would do whatever they can to publicize that crisis and to take a stand against it.

UPDATE: In response to a few e-mails, I will make this clear: at the end of his post, Kevin said this: "So while I'd vote for Feingold's motion, I don't think I'd hire him as a political theater consultant." So while Kevin did not say if he supported the introduction of Feingold's censure resolution or Feingold's efforts to bring the resolution to a vote -- and, in fact, wrote a post with multiple arguments against the political wisdom of that resolution -- he did say (in passing) that he'd vote yes on the resolution if he were to vote on it.

Additionally, Kevin has now added an Update to his post which acknowledges that Feinstein's anti-Clinton censure motion was introduced after Clinton was acquitted on impeachment charges. Thus, the Senators who supported Feinstein's censure resolution (which includes 19 Democrats who are still in the Senate) were urging that Clinton be censured on the merits of that issue, not as a tactical alternative to impeachment. It is simply indefensible for Senators who favored censuring Clinton not to support censure of Bush, whose law-breaking is repeated, ongoing, and relating to much more serious matters than what Feinstein's resolution called Clinton's "inappropriate relationship."

UPDATE II: Digby thoroughly analyzes, and thoroughly decimates, the rationale being peddled by inside Beltway consultant types as to why they think that Feingold's censure resolution might be politically harmful. Many of them seem particularly miffed that Feingold announced it without first telling them about it. I don't know why Feingold announced the resolution without consulting other Democratic Senators, but I can guess what the reasons might be.

Feingold is likely unhappy about the fact that even in the middle of all that is going on (with Bush's plummeting popularity and lawless surveillance on Americans), he could get only 9 other Democrats to join him in opposing the renewal of the Patriot Act. More specifically, it hasn't exactly been a secret that Beltway Democrats have been petrified of the NSA scandal from the start, worried that they'd be depicted as best friends of The Terrorists if they opposed the notion that the President has the power to break the law. I have no doubt that had Feingold consulted with them about his intent to introduce the resolution, they would have urged him not to do it. In any event, Digby's post is highly worth reading on the complete tone-deafness of these fear-embracing Democrats and the utter lack of merit of their concerns (they are always so "concerned") over Feingold's resolution.

Everything you ever wanted to know about how our government and media work

This Feingold Censure Resolution is unmasking the hideous underbelly of almost every Washington institution as vividly as anything that can be recalled. Each of the rotted Beltway branches is playing so true to form that the distinct forms of corruption and dishonesty which characterize each of them are standing nakedly revealed. As ugly of a sight as it is, it is highly instructive to watch it all unfold.

Let us being with these profiles in courage from your leading Democratic Senators, showing the nation how strong and tough they are:

"I haven't read it," demurred Barack Obama (Ill.).

"I just don't have enough information," protested Ben Nelson (Neb.). "I really can't right now," John Kerry (Mass.) said as he hurried past a knot of reporters -- an excuse that fell apart when Kerry was forced into an awkward wait as Capitol Police stopped an aide at the magnetometer.

Hillary Rodham Clinton (N.Y.) brushed past the press pack, shaking her head and waving her hand over her shoulder. When an errant food cart blocked her entrance to the meeting room, she tried to hide from reporters behind the 4-foot-11 Barbara Mikulski (Md.). . . .

So nonplused were Democrats that even Sen. Charles Schumer (N.Y.), known for his near-daily news conferences, made history by declaring, "I'm not going to comment." Would he have a comment later? "I dunno," the suddenly shy senator said.

Republicans were grateful for the gift. The office of Sen. John Cornyn (Tex.) put a new "daily feature" on its Web site monitoring the censure resolution: "Democrat co-sponsors of Feingold Resolution: 0." . . .

Many of Feingold's Democratic colleagues agree that Bush abused his authority with the NSA spying program. And they know liberal Democratic activists are eager to see Bush censured, or worse. But they also know Feingold's maneuver could cost them seats in GOP states. . . .

"Most of us feel at best it's premature," announced Sen. Christopher Dodd (Conn.). "I don't think anyone can say with any certainty at this juncture that what happened is illegal."

The column goes on and on like that, also naming Debbie Stabenow, Mary Landrieu, and Jeff Bingaman as Senators who virtually tripped over their own feet running away from the Feingold Resolution. There were a few -- very few -- honorable exceptions:

Dodd must not have checked with Sen. Tom Harkin (Iowa). "The president broke the law and he needs to be held accountable," he said. "Talk about high crimes and misdemeanors!" Harkin said he'll vote for the Feingold resolution -- if it comes up.

And Reid did say: "Senator Feingold is a man of principle . . . I think that people should cool their jets and let the process takes its course." But when asked about his view on the Resolution, he would only say this: "It's a question that's been asked 33 times in the last few hours And so, for the 34th time, I'm going to say the same thing: I'm going to wait . . . ."

As a result of all of this, we have seen headlines over the last two days like this:

* Feingold Draws Little Support for Censure

* Some Democrats Wary of Resolution On Wiretapping

* Democrats Beat Quick Retreat on Call to Censure President

That's the way to show the country how Democrats will take a stand. It's always a great political move when the verb "retreat" is used in a headline -- accurately -- to describe the conduct of Democrats. And abandoning one's own ally and fellow party member, while wallowing in so much fear as to not even be able to articulate a position, is really a great way to demonstrate the courage and principle that lays at the heart of the Democratic Party. It's almost as though they are purposely re-inforcing all of the weakness and indecision imagery which has been imposed on them so successfully for the last couple of decades.

Making matters much more inexplicable, and infuriating, is this list, compiled by Liberal Oasis, of the 24 Senators (19 Democrats, 4 Republicans and Jeffords) who are still in the Senate and who co-sponsored Dianne Feinstein's resolution to censure Bill Clinton (not just for lying but expressly for having an "inappropriate relationship" with an adult woman). Included on the list are many Senators who are afraid thus far to support Feingold's resolution -- including Schumer, Reid, Landrieu, Feinstein and Kennedy. Most political positions are subject to reasonable debate. Favoring a censure of Bill Clinton while opposing a censure of George Bush isn't one of them.

And, relating to A.L.'s post below on the abject willingness of the media to simply pass along even factually false claims, much of the fear exhibited by Democrats is based on this factually false premise repeated in today's Washington Post:

Many Democrats, while sympathetic to Feingold's maneuver, appeared to be distancing themselves from his resolution yesterday, wary of polls showing that a majority of Americans side with the president on wiretapping tactics.

That is just so very false. Reading polls is not that hard. Even reporters -- and Democratic consultants -- ought to be able to manage that. And one poll after the next for weeks now has shown that a majority believes (.pdf) that the President broke the law, and that a majority opposes eavesdropping on Americans without warrants. There is just no excuse for this falsehood to be repeated.

Finally we come to a characteristically vile little e-mail sent around by Ken Mehlman, exhibiting the only tactic Bush followers really can rely on these days -- accusing anyone who criticizes George Bush of supporting The Terrorists:

This week, liberal Democrat Russ Feingold called on the Senate to censure the President for a program that is successfully stopping terrorists. After months of searching, Democrat leaders are finally beginning to find their agenda: take away the tools America needs tofight terror. . . .

Weakening our national security is their agenda. Is it yours? Sign the petition to tell the Democrat leaders to stop undermining the War onTerror with cheap political stunts. We are a nation at war. Our President has no more basic responsibility than to protect the American people and fight terrorists who want to kill us.

It's one thing if a lone Senator wants our government to look the other way when an Al Qaeda terrorist contacts a sleeper cell inside the United States. It's entirely another when Democrat minority leader Harry Reid commends Feingold's censure move for "bringing [theterrorist surveillance program] to the attention of the American people."

So, to summarize what our survey reveals: We have Democrats running and hiding, afraid to stand up to the President even when he gets caught breaking the law. We have the media mindlessly reporting GOP talking points even when they are factually false and when the falsehood could be easily verified with about 60 seconds of research. And we have Republicans accusing those few Democrats who are willing to criticize the Leader of being on the side of Terrorists, while the media passes along those false accusations without comment and Democrats run away and hide some more, never showing any offense or anger at all from watching Republicans accuse them of treason.

That's our system of government, in a nutshell. These events over the last 24 hour news cycle, by themselves, would be sufficient to teach a Civics class how our national political institutions work right now. That is the system which Sen. Feingold decided to disrupt, and few things need disruption more than this morass of dishonesty and principle-free corruption that permeates every single component of our national political life.

A game without referees

By Anonymous Liberal

Yesterday I observed that "[t]he reason the John Cornyns and Bill Frists of the world are so sure [Feingold's censure resolution] will backfire on the Democrats is because they know the Democratic party, true to form, will not stand together. They're confident they can bluff their way into another disjointed, fractured vote." This is true, but there is another factor that contributes to their confidence, one that is not the fault of the Democratic party.

The other day Glenn highlighted a particularly outrageous quote from White House press secretary Scott McClellan, who--in responding to Sen. Feingold's resolution--said: "I think it does raise the question, how do you fight and win the war on terrorism? And if Democrats want to argue that we shouldn't be listening to al Qaeda communications, it's their right and we welcome the debate. We are a nation at war." This quote was included, without comment, in a Reuters article that was picked up by numerous publications. It also found its way into an article in the USA Today, the nation's most widely-read newspaper. Why is this important? Well, as Glenn points out:

This is not advocacy. This is just lying. No Democrats are advocating that we not listen to Al Qaeda communications, and Scott McClellan knows that. And no journalist ought to pass along this falsehood without pointing out that it is factually false.

What Glenn puts his finger on here is the X factor in modern politics: the sorry state of modern political reporting. The problem, as many others have pointed out before me, is that political reporters at all the major news outlets (except, of course, Fox News) rigidly adhere to what has become a painfully formulaic "balanced narrative" style of journalism. All issues are presented in a 'Republicans say X, Democrats say Y' format. This is true even when X or Y is patently absurd, or when anyone of even moderate intelligence can see right through the claims being made by one side or the other.

Journalists today are more like play-by-play announcers than referees. They no longer see it as their job to step in and call fouls, i.e., to call a lie a lie. As a result, modern politics operates more or less on the honor system, which, needless to say, only invites the dishonest and unscrupulous to make a mockery of our political discourse. When all that readers are presented with is dueling narratives, suddenly even the facts are up for grabs; the very concept of objective truth becomes increasingly elusive.

This is why Republicans believe they can frame the NSA controversy as a story about Democratic opposition to the surveillance of terrorists. They know that even blatant lies like McClellan's will be repeated by the mainstream press and, at worst, balanced by a competing quote from a leading Democrat. They know that the national media no longer has any interest in refereeing these political debates. They're content to sit back and do the play-by-play.

How did things come to be like this? Well, over the last two decades, the Republican political machine has engaged in a relentless and systematic assault on all of the institutions in our society that have traditionally served as checks on excessive partisanship. They have attacked the press, the judiciary, academia, even the very concepts of science and empiricism. Their goal has been to discredit and disable the referees, to politicize, marginalize, and co-opt any and all non-political institutions, and thereby eliminate any meaningful policing of political debate.

And they have been remarkably successful. In a relatively short period of time, conservatives have managed to convince a large segment of the population that the media, the judiciary, and even science itself cannot be trusted (often with an assist from these institutions themselves). Beyond damaging the credibility of these institutions in the eyes of many Americans, this withering assault has actually transformed the institutions themselves.

Fear of the "liberal bias" charge has effectively emasculated much of the press corps. The federal judiciary has been disproportionately stacked with conservatives and Federalist Society-types, and Republicans have repeatedly attempted to bully and intimidate the judiciary as a whole. Even our scientific and empirical knowledge has been diluted and corrupted by the spread of pseudo-science and ideologically-driven research. We've reached a point where nearly all truth is politicized. The line separating facts from spin has been hopelessly blurred, and political debate has, all too often, become a joke.

The ability of the national media (and other institutions) to act as effective referees of political discourse has been further eroded by the advent of alternative media outlets like the internet, talk radio, and cable television. As I noted in a recent post, for a talking point to gain traction and attain an aura of reasonability, it has to be repeated by a sufficient number of people, a critical mass.

In the old days, the establishment media had a virtual monopoly on political journalists and talking heads. This made it easier for the media to serve as a referee and to prevent the dissemination of patently false talking points. In the era of alternative media, however, talking points can be circulated and gain some (modest) traction without any assistance from the traditional media. And when a story gains momentum in this alternative sphere, the mainstream media outlets often feel obliged to "cover the controversy" and, in doing so, give added publicity to what are often meritless claims or spurious allegations.

Indeed, it is through this very process that conservatives introduced their most powerful idea: that the mainstream media has a consistently liberal bias. "Liberal bias" quickly became the rallying cry of the new conservative alternative media, and before long it gained significant traction. Reacting to this pressure, the mainstream media fundamentally changed the way it reported political news. Reporters were suddenly hesitant to discredit even the most bogus of conservative claims for fear of being accused of bias. This has led to an almost religious adherence to a reporting style in which accuracy is routinely sacrificed in the name of "balance," and neutrality is valued above even truth.

The Karl Roves and Scott McClellans of the world can count on almost any talking point, no matter how ludicrous, being presented to the public in a dueling narrative format--free from any independent editorial judgment. And the beauty of this strategy for conservatives is that it is self-reinforcing: the more conservatives yell "liberal bias," the more rigid the balanced format becomes.

Now, don't get me wrong; balance and neutrality are important to political reporting, particularly in a two party system like our own. But they should always be subordinate to truth.

When either side says something that is demonstrably false, journalists have an obligation to point this out and not simply leave their readers to sort through the mess on their own. The only way people are going to know which side is telling the truth is if reporters take this obligation more seriously. A demonstrably false statement should not simply be repeated without comment or balanced only by a partisan source. If journalists are uncomfortable calling a lie a lie, they should at least find neutral or non-partisan sources who are willing to do so. Citing only partisan sources all too often creates the impression that there is serious disagreement when, in reality, the facts are quite clear.

Journalists often protest that this sort lying and misdirection is "just politics as usual." But this profoundly misconceives the role that the media plays in enabling this sort of behavior. On many levels, politics is a game, and like any game, the players will adjust to the level of officiating. If the refs are unwilling to blow the whistle, the game is going to get pretty rough and dirty. But if the refs step in and start calling some fouls, the players will react accordingly, and the level of our political discourse will improve overnight.

Until that happens, however, the Scott McClellans of the world are going to continue to lie right to our faces, and unscrupulous politicians will continue to be confident that they can deflect serious allegations by baldly mischaracterizing the positions of their opponents.

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.

Following the script

(updated below - updated again)

By Anonymous Liberal


Sometimes it's all so predictable. Yesterday I wrote that despite the bipartisan consensus that President Bush acted illegally, Sen. Feingold "will undoubtedly be labeled as a rabid partisan by the GOP, someone 'extreme' and 'out-of-touch.' And if history is any guide, this characterization will be reinforced by Feingold's Democratic colleagues who will immediately try to distance themselves from his proposal in order to be seen as 'reasonable.'"

Sure enough, the AP story opens with the following:

Democrats distanced themselves Monday from Wisconsin Sen. Russell Feingold's effort to censure President Bush over domestic spying, preventing a floor vote that could alienate swing voters.

The article goes on to say:

Throughout the day, Feingold's fellow Democrats said they understood his frustration but they held back overt support for the resolution. Several said they wanted first to see the Senate Intelligence Committee finish an investigation of the warrantless wiretapping program that Bush authorized as part of his war on terrorism.

Well, that's going to be a long wait because the always reasonable, never extreme Republican members of the Intelligence Committee voted last week NOT to investigate. Did these Democrats sleep through all of last week? The Washington Post leads with this:

Some party strategists, however, worried that voters will see the move as overreaching partisanship, and Republicans pounced, practically daring Democrats to vote for the measure. "The big question now," said Sen. John Cornyn (R-Tex.), "is how many of his Democrat colleagues will follow him over the cliff?"

As usual, blowhard idiots like Cornyn, who have never worried for one second in their entire political careers about being seen as overly partisan, are able to scare Democrats into submission with a series of childish taunts. The article continues:

Several Democratic strategists said surveillance issues are not Bush's most vulnerable spot, and they fear the party may appear extremist.

Maybe someday these "strategists" will learn something by watching how their opponents operate. When was the last time the Republican party let fear of appearing "extreme" stop them from doing anything? And they now control every branch of government. GOP strategists long ago realized that, in politics, the only difference between an "extreme" idea and a "reasonable" one is the number of politicians willing to endorse it.

The reason the John Cornyns and Bill Frists of the world are so sure this will backfire on the Democrats is because they know the Democratic party, true to form, will not stand together. They're confident they can bluff their way into another disjointed, fractured vote. If the Democrats would just stand together and say what every single one of them thinks (and what many of their Republican colleagues think but lack the courage to say), there is no way the Republicans will succeed in painting them as "extreme" or excessively partisan.

Do these "strategists" read the polls? Yesterday--while all this was going on--Gallup reported that the President's approval rating hit 36%, an all time low. Those are close to Nixon levels. And a recent Zogby poll found that 52% of Americans support impeachment if the President is found to have wiretapped American citizens without court approval (which, by the way, he has admitted to doing). If that many Americans are willing to support impeachment, doesn't it stand to reason that even more would be willing to support the far less drastic step of merely declaring, for the record, that it's not okay for the President of the United States to openly defy a criminal statute?

We're faced with a situation where the President has admitted circumventing a longstanding criminal law designed to protect the constitutional rights of the American people. The White House has successfully strong-armed its Republican colleagues in Congress into abdicating their oversight responsibilities and thwarting any investigation into the administration's surveillance activities. If the Democrats in Congress believe the President has violated the law (and I'm confident every single one of them does) and there is no possibility of further investigation (which there isn't), seeking censure is the responsible, principled thing to do.

If the Democrats would just speak with one voice, confidently, clearly, the American public will respond. This isn't a difficult concept to explain to people. Most people no longer trust this President or his apologists in Congress. Most people believe strongly in the rule of law. This scandal has percolated long enough for the national media to understand it, and they will only treat this resolution as "extreme" if large numbers of Democrats shy away from it.

And like it or not, Senator Feingold has put this proposal out on the table. It can no longer be ignored. Either the Democrats will vote their consciences and come across as confident and principled, or they will once again look fractured and cowardly, uncomfortable in their own skin. The GOP did not take back Congress in 1994 by shying away from what they believed or pulling their punches when it came to criticizing an unpopular president. They were vocal and confident and combative. People weren't sure what GOP leadership would be like, but they knew it would be different and they could sense that the Republicans were sure of themselves.

Democratic strategists always seem to think that swing voters are looking for some milquetoast moderate to vote for, someone agreeable, someone who doesn't rock the boat. They're wrong. Most independents are just as fed up with the way things are going as liberals are. Look at the polls. What these voters are looking for is brand differentiation. They want to vote for a party that seems competent and confident, a party with courage of conviction and a plan for change. They won't be scared away by strong words or harsh criticism.

This is a pivotal moment for the Democratic party. The Democrats can either play by the normal script and feed every negative stereotype about the party, or they can chart a bold new course by voting together for something they all believe to be right. Fortune favors the brave.


UPDATE (by Glenn): Illustrating the challenge astutely described by A.L. is this amazing post from Elton Beard, which details the aggressive support given by Sen. Diane Feinstein to the Censure Resolution . . . . . which she introduced in 1999 to condemn Bill Clinton's conduct in the Lewinsky affair (including a clause specifically condemning him for his "inappropriate relationship"). That's contrasted with her noncommital stance as to whether the current Republican President should be censured for eavesdropping on Americans in violation of the law.

Similarly, Digby contrasts the statement yesterday from Joe Lieberman that he'd prefer to look to the future rather than "scold" Bush, with his pious insistence in 1999 that Clinton's behavior "is wrong and unacceptable and should be followed by some measure of public rebuke and accountability." What more can one say about a political party whose politicians want to censure a President in their own party for his role in a sex scandal, while fearfully refusing to censure a President in the other party for breaking the law -- repeatedly, deliberately and proudly -- while spying on American citizens? This is a real crossroad for Senate Democrats, each of whom will be forced -- thanks to Russ Feingold -- to reveal their true character.

UPDATE II (by Glenn): Here is the breakdown of the House Judiciary Committe's vote on the resolution to censure Bill Clinton, which was rejected 22-14. Fourteen out of sixteen House Democrats (including Chuck Schumer) voted for it, and all Republicans voted against it (because they wanted impeachment, not censure). So, unlike Feinstein's censure resolution (which was introduced after the Senate acquitted him on the impeachment charges), these House Democrats supported censure as an alternative to impeachment. Still, they did not have to vote for it, and at least two of them refused to do so. How can any Democrat who voted in favor of censuring Bill Clinton - such as Schumer - possibly even have to think about whether to support Feingold's resolution to censure of George Bush?

UPDATE III: An encouraging sign: Donna Brazile, who is usually one of the most conflict-adverse and fear-based Democratic consultants, has written a shockingly impassioned article for Roll Call urging national Democrats to join the blogosphere in supporting Sen. Feingold's censure resolution. The article is for subscribers only but here is a representative excerpt:

The progressive blogosphere is on fire right now. Web loggers are pumped up about the effort by Sen. Russ Feingold (D-Wis.) to censure President Bush for breaking the law on domestic surveillance and taking matters into his own hands. . . .

As a Beltway insider, I am convinced that we cannot continue to tell those who have loyally supported our Democratic leaders to wait. Wait for what? Wait until our pollsters give us the green light to speak up? Should we continue to wait, hoping that the Republicans will finally invite Democrats into the room when important decisions affecting our national security are made?

All I know is that people outside the Beltway have grown deeply impatient with our focus-group style of politics. They want to see some bold changes and some new leadership.

It's time to break with the same-old, same-old and use the Feingold resolution to force the Republican-controlled Congress to commit to serious oversight of the controversial, but increasingly popular, surveillance program.

The message from the left-leaning blogosphere is clear: Democrats should understand the real issue. The point is not censure or impeachment; it is Congress' lack of oversight and its failure to hold anyone accountable for major mistakes or missteps. And especially, it's about clearly misleading the American public. . . .

Oversight is a fundamental responsibility of Congress, which until the Republicans took over was a coequal branch of government. It's long past time for the Republican Congress — and in particular the House and Senate Intelligence committees — to stop protecting the administration and start doing more to protect the American people.

If Donna Brazile is saying things like that in Roll Call, there is hope that this message is starting to penetrate the previously impervious Beltway walls.

Blog plans

I began this blog roughly five months ago without having a particularly clear idea of what its purpose would be. My primary motivation in starting the blog was vague and narrow -- just to create some vehicle for participating in the blogosphere discussion because I thought there were important things worth saying that were not really being said, at least not in a way that they were being heard. In the relatively short time since the blog began, its functions have expanded far beyond that and it has grown into something that I never remotely anticipated or planned when I started it.

Beyond just the blogging itself, this blog, without any real intent or planning on my part, has come to include a whole array of other extensive activities -- including substantial amounts of researching, reporting, political organizing, efforts to create working relationships with politicians and political organizations, and ongoing attempts to create some meaningful coordination among blogs and their readers. And I know that only the very tip of that iceberg has been tapped. I would like this blog to continue to grow -- in size, impact, function, and purpose.

Between the blogging itself and all of the other related activities, all of this has gradually become a full-time job and then more. That's not a complaint. To the contrary, it's extremely gratifying and fulfilling to be able to do work on matters about which I have a real passion and which I think have had an impact and can have much, much more of a real impact. But for me to be able to continue to maintain this level of commitment, at the expense of income-producing activities, and to be able expand the scope of what is done here, it's necessary to find a way to make doing all of that economically feasible.

To try to use the blogosphere in order to have some meaningful impact amidst the swirling warfare of politicians, political parties, consultants, and media outlets is a difficult challenge. To really succeed at that, it needs to be more than a side hobby or an activity which imposes financial hardship. On one important level, the measure of a project's strength and value is whether it is financially self-sustainable. Political organizations and alternative media outlets always have to find ways to become financially self-sufficient because, for better or worse, that is the oil that enables a machine to operate powerfully and without constraints.

The profound importance of the blogosphere is grounded in the fact that the other institutions and safeguards which are supposed to exist as a check on abuses and excesses by the government are rotted and broken. Congress is co-opted, corrupt, and under the control of the Bush Administration; the national Democratic Party is paralyzed by fear, indecision, and a suffocated, or missing, soul; and the role which the media plays is so far removed from what it is intended to be -- and from what it has to be in order for us to maintain a healthy and functioning democracy -- that one can literally spend every day documenting its gross failures and abuses.

To me, the blogosphere is, at its core, an instrument that is being used by citizens to congregate and figure out ways to create new weapons and competing systems to rectify those failures. For that reason, most people who read and participate in blogs believe that blogs now play an irreplaceably important role in trying to force some measure of change. I certainly believe that.

But a real problem in sustaining and increasing the influence of blogs is that there is no real economic model for blogs to be self-sufficient. On the whole, advertising produces negligible amounts. This blog now has between 15,000 and 20,000 daily readers, which places it in the top 50 or 60 for blog traffic, and yet ads have produced about $100 total in the last three months. From what I can tell, the advertising model is nowhere near developed enough to enable blogs to be financially feasible.

Ultimately, even if other economic models are developed -- whether it be increased advertising or blogging for large media entities -- the most potent and, in my view, the ideal model will be for a blog to be sustained by the blog readers and participants who believe in its value and support its objectives. That model is the one used by political advocacy groups and even public radio and television outlets, which rely on contributions from those who support their activities. It ensures independence, and with that model, the blog can sustain itself only if it continues to perform an important function which generates meaningful support.

I want to create ways to make this blog and its related political activities financially sustainable so that I can devote my full time and attention to them, and so that they can continue to grow. Readers e-mail me all the time with suggestions for the blog that I think would be extremely fruitful -- a new website with added functionality, someone to work with me on research so that the quality and amount of original reporting can be increased, a more concrete structure for coordinating political activism. The reality is that to pursue any growth with this blog and its related projects is going to require that the blog be financially sustainable, and that can happen only if the readers and supporters of this blog make it sustainable.

I'd like to create a system for some sort of more organized and structured way to achieve these goals, but don't yet know what that is. I'm open to suggestions. I've received some periodic contributions over the last few months, as well as lots of ongoing encouragement and support, and that has really motivated me to continue and to want to commit myself much more to all of this.

For now, if you're inclined to support the work that is being done here and want to help enable it to grow, there is a donation button on the sidebar of the blog that can be used to contribute through paypal. Anyone who wants to use an alternative means can contact me by e-mail.

I don't see this as a request for some sort of assistance or anything that is even remotely obligatory for anyone. I see it as a way of expanding the purpose of the blog and the scope of what it can achieve. I don't think that bloggers have an automatic entitlement to contributions just for blogging. I think a blog should be sustainable in this way only if it is performing a function that is valuable enough to a sufficiently large group of people that it can be sustained by the people who want to support it and who want to see it grow. I want to continue building the blog and increase the functions it performs, but that will work only if there is sufficient support for those efforts.

Advocacy v. lying

(updated below)

Like anyone else, the White House has every right to engage in aggressive advocacy when defending itself as part of the NSA scandal or any other issue, and it is not the role of the media to take sides in political debates. But when the White House simply lies, it is the responsibility -- the core purpose -- of journalists to point that out.

Here, according to an article from Reuters, is what Scott McClellan said today in response to Sen. Feingold's censure resolution:

"I think it does raise the question, how do you fight and win the war on terrorism?" McClellan said. "And if Democrats want to argue that we shouldn't be listening to al Qaeda communications, it's their right and we welcome the debate. We are a nation at war."

This is not advocacy. This is just lying. No Democrats are advocating that we not listen to Al Qaeda communications, and Scott McClellan knows that. And no journalist ought to pass along this falsehood without pointing out that it is factually false.

The debate is not and has never been over whether we should eavesdrop on Al Qaeda. Everyone wants eavesdropping on Al Qaeda. The issue is whether the Bush Administration should eavesdrop in accordance with the law (with judicial oversight and approval), or in violation of the law (in secret and with no oversight, something that has been a criminal offense in this country since 1978). That is NSA Scandal 101, something that has been clearly established and beyond dispute from for months.

It is a potent reflection of how little the White House can say in response to the accusation that the President broke the law that they can respond only by: (a) flagrantly and dishonestly distorting the argument against it (by pretending that this is about whether we should eavesdrop on Al Qaeda), or (b) accusing those who protest the President's law-breaking of committing treason.

The reason that we invaded Iraq with an astounding (and truly embarrassing) 70% of the country believing (falsely) that Saddam personally participated in the planning of the 9/11 attacks is because the media failed in its responsibility to correct factually false Government statements. They just blithely passed them along without comment, as though their function is to give the government a megaphone for its propaganda rather than serve as an adversarial watchdog which cynically scrutinizes the government's claims.

It is completely unacceptable, and a total abdication of their responsibility, for the media to pass along the White House's factually false claim that Democrats oppose eavesdropping on Al Qaeda. The media does not need to, and should not, take sides in the NSA debate, but it ought to inform American citizens about what the arguments actually are and what the debate is about. If it doesn't do that, what does it do?

UPDATE: ReddHedd has a couple of very comprehensive posts here and here with all of the information needed to begin calling and e-mailing today in support of the Censure Resolution. I expect there will be a more focused and specific plan in a couple days, but for now, by all means, everyone should be harassing their Senators and encouraging them to support Sen. Feingold's resolution. I think the more quickly support emerges, first from citizens and then from Senators, the more momentum it can get.

UPDATE II: Crooks and Liars has the video of the press conference where McClellan made this false statement about Democrats being opposed to eavesdropping on Al Qaeda.

Sen. Feingold's censure resolution is moderate and reasonable

By Anonymous Liberal

On Sunday Senator Russ Feingold called for President Bush to be censured by Congress for authorizing extensive and ongoing violations of a criminal statute, FISA. There is nothing at all radical about Feingold's proposal. The administration has admitted that it circumvented FISA and there is broad agreement across party lines that the President did not have the authority to do so (hence, the move by Congressional Republicans to pass some sort of legislation making the President's actions legal, at least going forward).

Despite this broad bipartisan consensus, Feingold will undoubtedly be labeled as a rabid partisan by the GOP, someone "extreme" and "out-of-touch." And if history is any guide, this characterization will be reinforced by Feingold's Democratic colleagues who will immediately try to distance themselves from his proposal in order to be seen as "reasonable." On Sunday, Glenn did a great job describing this same phenomenon in the context of the relationship between the Democratic establishment and the blogosphere.

They [most Democrats politicians] don't want to go anywhere near the citizen activism in the blogosphere because Tim Russert and Chris Matthews will no longer think they're a moderate, serious, responsible Democrat, and Republicans might accuse them of being an extremist or a liberal. They'd prefer to avoid that disapproval even it means losing (as it usually does), than be criticized and win. The reason they run away from their own allies in the blogosphere is the same reason they so often run away from taking a real stand against the Bush Administration -- it's because they are petrified that the establishment media and even Republicans will criticize them as being too combative, too liberal, extremist, etc.

What Democratic politicians fail to understand--and this is particularly ironic given the Democratic party's historical association with the labor movement--is that this is fundamentally a collective action problem. The term "reasonable" has no objective meaning, at least in the realm of politics. Whether an idea is deemed "reasonable" has little to do with the merits of the idea and everything to do with the prevailing political climate as interpreted by our national media. GOP strategists like Karl Rove long ago realized that the national media will treat any talking point that is repeated by enough people as ipso facto "reasonable," and conversely, will treat any idea that is not repeated by a sufficient number of people as "unreasonable" or "extreme," no matter what its objective merits. It's a very crude calculus and one that is easily manipulated by shrewd partisans.

A textbook example of this phenomenon--if you'll pardon a brief digression--is the debate over the repeal of the Estate Tax. A decade ago, the idea of repealing the Estate Tax--a tax which applies only to the inherited wealth of the super-rich--was a complete and utter fantasy. Indeed, it's hard to imagine a proposal that, on its face, is more objectively unreasonable--from both a political and policy perspective--than repealing a tax which only affects the Paris Hiltons of the world. But through sheer collective will, the GOP came very close to doing just that this past year, and at a time of exploding deficits and a prolonged, expensive war. What Republican strategists have learned is that when a party speaks in unison, it has the power to define what is considered reasonable in the eyes of the national media, and in turn, the American public.

Democrats, however, cannot seem to internalize this idea. They approach politics as if the rules of reasonability and civil discourse are immutable or have been set by some neutral referee. When someone like Howard Dean steps over this arbitrary line, Democrats join the GOP in immediately calling "foul." When a Republican steps over the line, however, more often than not his Republican colleagues act collectively to move the line. Suddenly we find ourselves in a debate over whether outing a CIA agent is actually a good thing, or whether a law that has been on the books for three decades and repeatedly reaffirmed by this President should be violated. It doesn't matter what the consensus was five minutes ago. Talking points that would have seemed totally absurd days earlier suddenly become credible and reasonable, and for no other reason than they are being repeated by a chorus of Republican politicians, pundits, and bloggers. In this way, the definition of "reasonable" can be changed dramatically overnight.

Senator Feingold's call for Congressional censure is an eminently reasonable response to the NSA scandal by any objective measure. Just eight years ago, Congressional Republicans impeached a president for lying about a private consensual affair in the context of a frivolous civil suit which was financed and litigated by the president's enemies. We are now faced with a president who is engaged in ongoing violations of a criminal statute intended to protect the constitutional rights of the American people. There is agreement that extends well beyond party lines that the President does not have the constitutional or statutory authority to do what he is doing. This administration has repeatedly ignored, misled, and marginalized Congress. If such facts do not warrant censure, it's hard to know what does.

And as I've written in detail before, the Democrats have the law, the polls, and righteousness on their side. If they were to stand up as a party and support Feingold's motion for censure, they would have the full-throated support of virtually every left-leaning and centrist blogger, numerous prominent pundits and commentators, the majority of constitutional lawyers and legal professors, and a significant number of conservatives. In the face of such a chorus, the national media would be forced to cover Feingold's proposal as the reasonable, non-extreme measure that it is. For once, the Democratic party could show that it has a backbone and not allow the GOP to define the limits of reasonableness for them. If ever there was a time for collective action, it's now.

UPDATE (by Glenn): One of the problems which A.L. is referencing here is quite vividly illustrated by this article from The New York Times, which reports that Sen. Carl Levin, when asked about Feingold's resolution on CNN's Late Edition yesterday, said this:

"I think what the president did was wrong," Mr. Levin said. "But even though I think he was wrong, I would rather wait until the investigation is completed, which has now been started by the Intelligence Committee, before I go beyond that."

In fairness to Levin, it seems that Feingold told nobody about his Censure Resolution until he announced it with George Stephanopolous, and so Levin wasn't prepared to address it yesterday when he was asked about it. Still, Levin's response, which was both frightened and incoherent, illustrates a serious instinct problem which so many Democrats have (and, just incidentally, someone really ought to tell Sen. Levin that waiting "until the investigation [of the Senate Intelligence Committee] is completed" before deciding what to do is going to be a very long wait, since that Committee voted last week not to investigate).

Rather than use the opportunity he had to aggressively condemn the Bush Administration's law-breaking, Sen. Levin did the opposite: he mentioned just in passing -- in the most cursory, reluctant and obligatory manner possible -- that "what the president did was wrong," but then he devoted the bulk of his answer to fearfully warning that we shouldn't do anything about it, that we should wait, that we should think more about it, that we should just impotently and quietly stand by and remain cautious, stagnant, non-committal and unsure.

How is it even possible for a Democratic Senator to conclude that the President broke the law but then -- three full months after the law-breaking is revealed -- counsel that nothing should be done about it? That is the mentality we need to fight against in order to generate as much support as possible for Sen. Feingold's resolution.

UPDATE II: Sen. Feingold's office has posted the Censure Resolution on his site (.pdf).

How to take a stand for your country

(updated below)

I really encourage everyone to listen to the full interview which Sen. Russ Feingold gave today with George Stephanopolous on ABC's This Week, in which Feingold announced that he was introducing a Resolution to censure George Bush for breaking the law with his warrantless eavesdropping program aimed at Americans. Crooks & Liars has the video of the full interview here. The full transcript of the interview is here.

As you listen to it, just imagine where this scandal would be if Democrats had simply come out from the beginning and taken a strong stand in defense of the rule of law and our constitutional principles, instead of listening to those worthless, fear-driven Beltway consultants who -- as Feingold pointed out -- counseled that Democrats should just allow Bush to break the law because it was too risky politically to oppose it.

All that was necessary from the beginning was to make three very simple and clear points, just as Feingold made them today:

(1) We all want eavesdropping on Al Qaeda and the law allows that;

(2) The problem isn't that the President eavesdropped; it's that he did it in a way that broke the law by eavesdropping without judicial oversight and approval, which Americans required in 1978 in order to prevent abuse of the eavesdropping power; and,

(3) We cannot maintain our constitutional republican form of government if the Congress stands by meekly and silently and allows the President to break the law, no matter what his intentions are. We did not declare martial law on 9/11. We are still a nation of laws and it is intolerable for the President to act illegally.

I hope Feingold forces a vote on this Resolution and we can separate the patriots from the cowards in both parties. He certainly sounded like he intends to. And we should do everything possible to demand that every single Democratic Senator and every periodically honest Republican Senator support this Resolution as well.

Bill Frist followed Feingold on the show and the following is an excerpt from his response. It is not possible to exemplify how an authoritarian cultist thinks and acts any more vividly than Frist did in making this statement:

FRIST: George, what was interesting in listening to my good friend-Russ, is that he mentioned protecting the American people only one time, and although you went to politics a little bit later, I think it's a crazy political move and I think it in part is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the President of the US as Commander in Chief, who is out there fighting al Qaeda and the Taliban and Osama bin Laden and the people who have sworn, have sworn to destroy Western civilization and all the families listening to us. And they're out now attacking, at least today, through this proposed censure vote, out attacking our Commander in Chief. Doesn’t make sense.

As Digby has astutely pointed out many times, it is nothing short of creepy how lowly politicians like Frist always refer to the President, who is our public servant, as our "Commander in Chief." The President is not the Commander in Chief of Americans; he is only the Commander in Chief of the armed forces (Art. II, Sec. 2: "The President shall be Commander in Chief of the Army and Navy of the United States"). Constantly referring to him as the Commander in Chief is to imply that we have the obligation to treat him the way that soldiers are required to treat their military commanders -- i.e., with unquestioning obedience. That is appropriate for a military dictatorship, but not for a constitutional republic.

Beyond that, Bill Frist is making a rancid and consummately undemocratic point -- that to criticize the President or to hold him to account for his illegal conduct is tantamount to treason, because it constitutes an "attack" on the Commander in Chief which impedes our war effort, a despicable equivalency which they have been peddling for years, ever since John Ashcroft in December, 2001 warned the Senate that questioning the Administration was the same as aiding our enemies:

Attorney General John Ashcroft lashed out Thursday at critics of the administration's response to terrorism, saying questions about whether its actions undermine the Constitution only serve to help terrorists.

"To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve," Ashcroft told the Senate Judiciary Committee. "They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

Of all the dishonest and corrupt steps taken by this Administration, the worst, in my view, is that they have flamboyantly masqueraded as defenders of America while they have simultaneously sought to dismantle every political attribute and core principle that has defined who we are as a country for the last 225 years. Bush followers will undoubtedly seek to depict Feingold's effort as quixotic, radical, and even treasonous. And it faces obvious uphill battles, beginning with the frightened posture of Feingold's Democratic colleagues.

But sometimes, the act of a single person of this nature can change things dramatically. Just as Bush followers thought that they had swept this scandal under the rug and covered it up by ensuring that there would be no investigation, Sen. Feingold goes on national television and urges that the President be censured for breaking the law. And he's on the Judiciary Committee as well, and this should make it that much more difficult for Specter to simply shut down the hearings without following through on his promise to find out if there are other warrantless eavesdropping programs besides the one we know about.

Taking a strong and principled stand in defense of the rule of law and our country's principles is what we have been urging Democrats to do from the very beginning of this scandal, and it's what Sen. Feingold just did. I think the blogosphere as a whole ought to find the most effective ways for harnessing whatever influence and power we can muster in order to pressure as many Democrats as possible to support this resolution and to make it as clear as possible to the country why it is so warranted and urgently needed.

UPDATE: I have a post up today at Crooks and Liars regarding the bewildering and truly self-destructive refusal of so many national Democrats to have anything to do with the blogosphere, despite the fact that the blogosphere is really the only venue which can generate truly impassioned and vibrant citizen activism.

It's my hope that Sen. Feingold's office will be receptive from the beginning to exactly the sort of cooperation I reference in that post -- cooperation which many national Democrats are simply afraid to pursue because they fear what Tim Russert, Chris Matthews and their Republican friends and colleagues will say about them if they have anything to do with the fringe, dirty, extremist masses in the blogosphere.

UPDATE II: Via Jeralyn at Talk Left, Sen. Feingold has posted a press release and a Fact Sheet explaining the rationale for his Censure Resolution. In addition to Jeralyn, both Georgia and ReddHedd explain why pursuing censure at this point (as opposed to, say, impeachment) makes complete strategic sense. I agree entirely with that reasoning.

The first order of business is to persuade larger and larger segments of the public that the President broke the law because he believes he has the power to do so, and that this poses a profound and intolerable threat to our system of government. Just as Bush followers thought they had swept this scandal under the rug, Feingold's resolution ensures that this scandal will remain in the public eye and that that discussion will continue.

Criminalizing exposure of government wrongdoing

This article from Editor & Publisher reports that the proposed legislation for the so-called Terrorist Surveillance Act of 2006 to be introduced by Ohio Sen. Michael DeWine -- the principal purpose of which is to legalize the Bush Administration's illegal warrantless eavesdropping on Americans -- contains unprecedented provisions which create whole new categories of crimes designed to punish any future discussion of the President's eavesdropping activities, including by reporters:

Reporters who write about government surveillance could be prosecuted under proposed legislation that would solidify the administration's eavesdropping authority, according to some legal analysts who are concerned about dramatic changes in U.S. law. . . .

The Associated Press obtained a copy of the draft of the legislation, which could be introduced as soon as next week.

The draft would add to the criminal penalties for anyone who "intentionally discloses information identifying or describing" the Bush administration's terrorist surveillance program or any other eavesdropping program conducted under a 1978 surveillance law. Under the boosted penalties, those found guilty could face fines of up to $1 million, 15 years in jail or both.

Kate Martin, director of the Center for National Security Studies, said the measure is broader than any existing laws. She said, for example, the language does not specify that the information has to be harmful to national security or classified.

"The bill would make it a crime to tell the American people that the president is breaking the law, and the bill could make it a crime for the newspapers to publish that fact," said Martin, a civil liberties advocate.

While DeWine's office denied any intention to criminalize discussions by journalists of these programs, that is clearly the effect. And the fact that they are attempting to add whole new categories of criminal conduct arising out of any discussion of the Administration's eavesdropping conduct -- even if such discussion does not entail the harmful disclosure of classified information -- demonstrates, yet again, that the primary lesson learned by the Administration from the NSA scandal is that new ways must be invented to punish those who report on the illegal conduct in which they engage.

These new provisions in the DeWine legislation are clearly part of the Administration's campaign to increase the scope of whistle-blowing and journalistic activities which are treated by the government as criminal. As part of that campaign, Pat Roberts last month announced that he would introduce legislation adding new categories of whistle-blowing activities to the criminal law and which severely increase the penalties for violations of those laws.

The Administration self-evidently intends to use the criminal law to prevent further revelations of their illegal behavior, whether the disclosures come from ordinary citizens, government whistle-blowers or investigative journalists. They want anyone who is considering disclosing government wrongdoing to fear the prospects of criminal prosecution so that they remain silent. As I've documented several times before, journalists are the primary target of this intimidation campaign, but it extends far beyond them as well.

One no longer is surprised when the media ignores or fails to understand severe crises in our government, but one would expect that if they take a stand against anything, it would be crusades of this sort to intimidate and silence the adversarial press. So far, at least, their silence is deafening.

A trip down right-wing memory lane

What "conservatives" used to say about the Limits of the Federal Government, the Dangers of Surveillance Powers, and Investigations into Alleged Governmental Law-breaking

One of the most truly extraordinary spectacles to witness is the way in which so many self-proclaimed conservatives have shed their core defining "principles" in order to justify and defend the ever-expanding powers of the Federal Government under the Bush Administration. Throughout the 1990s, conservatism was defined by its fear of expansive powers seized by the Federal Government -- particularly domestic law enforcement and surveillance powers. Conservatives vigorously opposed every proposal to expand government investigative and surveillance power on the ground that such powers posed intolerable threats to our liberties.

I've tried to make this general point before, citing, for instance, this article from Free Republic decrying the power of the Federal Government to obtain warrants from a secret court (!) called the FISA court, which authorizes the government to actually eavesdrop on American citizens without their knowledge! But if one goes back and actually reads the statements made by leading conservatives throughout the 1990s regarding not just surveillance powers but all matters relating to Federal Government law enforcement powers and the need for vigorous and objective investigations into allegations of government law-breaking, the complete and total reversal of all of their views upon taking over the government is truly mind-boggling. (And, by the way, John Kerry has no character because he apparently changes his mind on issues, which makes him a spineless flip-flopping opportunist).

Here's your trip down memory lane, when conservatives used to pretend that they believed in principles of limited government powers, the need for investigations into law-breaking accusations, and the preference for individual liberty over increased security:

Let us begin with Sen. John Ashcroft, warning in July, 1997 of the profound dangers posed by proposals for the Federal Government to overcome encryption technology in order to enable the Government to monitor international computer communications (justified by the Clinton Administration on the ground that terrorists use such communications and the U.S. government must therefore be able to monitor them):

J. Edgar Hoover would have loved this. The Clinton administration wants government to be able to read international computer communications – financial transactions, personal e-mail and proprietary information sent abroad – all in the name of national security.

In a proposal that raises obvious concerns about Americans' privacy, President Clinton wants to give agencies the keys for decoding all exported U.S. software and Internet communications. . . .

Not only would Big Brother be looming over the shoulders of international cybersurfers, he also threatens to render our state-of-the-art computer software engineers obsolete and unemployed.

Granted, the Internet could be used to commit crimes, and advanced encryption could disguise such activity. However, we do not provide the government with phone jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the Orwellian capability to listen at will and in real time to our communications across the Web?

The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value. . . .

Every medium by which people communicate can be exploited by those with illegal or immoral intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records or translate our international communications.

Those who made such arguments in 1997 were great patriots defending American liberty. Now, anyone who says such things is -- according to Ashcroft himself -- an al Qaeda ally who is working subversively to destroy America.

Next we have Bush supporter Ramesh Ponnuru, writing in the May 8, 2000 edition of National Review on the dangers of federal government "storm troopers," as illustrated by the Elian Gonzales seizure, and specifically protesting the way in which such law enforcement powers are justified by highlighting the difficulties faced by Clinton Administration officials as they struggle with the difficult challenges of exercising power for our own good:

At every step of this drama, we have been invited to ponder how administration officials feel. Network anchors said that the standoff must be "tearing Reno up," given her deep concern for children; her deputy, Eric Holder, told us that he held her as she cried. Afterward, there was endless talk about the patient, compassionate attorney general. The INS agents who did the dirty work were also available to the press. They said they had never encountered such resistance before, citing the couch that had been placed against the door.

Let us hope this administration's mercy is never deployed against us. If that happens, we will be reassured that we are being pummeled and jailed for our own good. Our punishers may be psychiatrists, as Elian's are likely to be. For now, though, the style of government licensed by our carelessness does not touch us. We send a child to suffer tyranny for his own good, and to get him off the evening news. Like Winston Smith, we weep and realize that we love Big Brother.

Is that at all like the way we hear about how George Bush wakes up every day thinking about how to protect Americans and we should therefore be grateful to him for his spying on us as he struggles to defend us? Like Winston Smith, we weep and realize that we love Big Brother.

Then we have Bush follower Kate O'Beirne, expressing outrage in the September 27, 1999 issue of National Review over the inadequacies of the Congressional investigation into allegations of Federal Government abuses of power at Waco. It seems that our democracy is threatened when allegations of abuse of power are made against an Administration, the Administration withholds documents from Congress relating to the controversy, Congress fails to adequately investigate the allegations, and the wrongdoers are left in power with no scrutiny over their actions:

The FBI has returned Washington's attention to Waco by admitting that it used incendiary military devices during its raid on the Branch Davidians. There have been calls for special committees to conduct new investigations into the "cover-up," and conspiracy theorists are enjoying a new respectability. But the charge of a cover-up risks masking the truly important issues raised by the Waco tragedy.

Two House subcommittees held hearings in 1995. On the opening day, Democrat John Conyers declared that there was nothing to warrant the scheduled eight days of hearings. Another Democrat, Tom Lantos--who had presided over no fewer than 27 hearings on a now-forgotten HUD scandal--raised questions only about the gun lobby's interest in the hearings. Other Democrats cared about nothing but allegations that Branch Davidian leader David Koresh had committed child abuse.

For its part, the administration made a show of cooperation, but tried to impede the committees' access to relevant material. Thousands of documents were not made available until the hearings began. The Department of Treasury delivered documents in no apparent order, and provided an index only to the committees' Democrats. . . .

We already know the basic story of Waco, including many of its key details. And that story makes unmistakable what the real scandal is: that Janet Reno, who presided over the whole debacle and has never seriously investigated it or held anyone to account for it, remains the top law- enforcement official in the country.

So, according to O'Beirne, it is just outrageous when Congress refuses to conduct investigations into allegations that Administration officials broke the law, and the scandal is that much worse when the Administration withholds documents relevant to that investigation.

And then we come to Deroy Murdock, writing on April 13, 2001 in National Review Online on the grave dangers to our country from allowing political officials to act in violation of the U.S. Code without so much as an investigation:

[Cato Institute's Timothy] Lynch exposes a maddening culture of impunity in which few officials face serious consequences for violating the law. This double standard, in which federal badges become licenses for lawlessness, typified the Clinton-Reno years. The Bush-Ashcroft team should end this intolerable situation by prosecuting those federal officials who apparently broke the law at Waco and thereby contributed to the injury and deaths of scores of innocent American citizens. . . .

"Because numerous crimes at Waco have gone unpunished," Lynch states, "the people serving in our federal police agencies may well have come to the conclusion that it is permissible to recklessly endanger the lives of innocent people, lie to newspapers, obstruct congressional subpoenas, and give misleading testimony in our courtrooms."

While it is ugly but legal to lie to reporters, these other acts clearly are criminal. Private citizens are jailed for less. Unless "equal justice under law" is a slogan as hollow as a spent bullet casing, federal prosecutors must indict and try the law enforcement officials who, as Timothy Lynch convincingly argues, set the U.S. Code ablaze eight Aprils ago . . . .

Convicted felon and current Bush official Elliot Abrams spoke so very eloquently in the September 27, 1997 issue of National Review of the need in our system of government to have objective oversight and investigation -- not politicized and friendly rubber-stamping from the Justice Department -- when our highest government officials are accused of breaking the law:

For conservatives, Waco is in large part a quis custodiet problem: Who guards the guardians? Whatever faith we may wish to place in the professionals of the FBI, who guards them from error? Who looks over their shoulder? Who punishes their abuses?

This is a problem only in practice, not in theory. In theory, the answer is easy: the professionals of the Department of Justice. Distinguished practitioners of the law who are presidentially appointed to the department work together with Justice's career staff to provide a check on the FBI and other federal law-enforcement agencies. This is critical, because the balance between energetic law enforcement and limits on excessive government power will not be maintained if the Justice Department does not seek vigorously to maintain it.

And then we have Newt Gingrich, who, as reported by the May 11, 1995 issue of Roll Call (not available online), told us how those rugged individualist conservatives in the West and Midwest fear the Federal Government and insist on limiting its intrusion into our lives even if it meant giving up some security. Apparently, fear of the Federal Government is part of the core American character:

When asked on NBC's "Meet the Press" about Rep. Helen Chenoweth's (R-Idaho) outrageous proposal to force federal law enforcement agents to check with local sheriffs before making an arrest, Gingrich finally got around to opposing it, but not before cautioning that "Easterners...and people who live in big cities ought to understand that there is, across the West, a genuine sense of fear of the federal government. This is not an extremist position in much of the West."

As a result of the federal assault on the Branch Davidian complex in Waco, Texas, and a shoot-out at a white supremacist's cabin in Idaho, Gingrich repeated, "There is in rural America a genuine - and particularly in the West - a genuine fear of the federal government and of Washington, DC . . . .

That was the glorious era when conservatives were fond of claiming that engrained in the American spirit is a fear and distrust of federal government power that the government ignored at its peril. Those who express distrust now over the Federal Government's having unlimited powers to detain and engage in surveillance against American citizens are paranoid, anti-American freaks. Back then, they were the rugged patriots from the salt of the earth. From the Los Angeles Times on May 15, 1995 (not available online):

Shedding an earlier caution, many Republican politicians have been speaking out with increasing boldness to support positions taken by right-wing militia groups.

Even as President Clinton has attacked the groups' claims to patriotism, House Speaker Newt Gingrich (R-Ga.) and a growing corps of allies from Western states have recently expressed sympathy for some citizens' fears of encroaching government, called for new scrutiny of federal law officers and rejected demands for investigations of the militias themselves.

While none are defending the Oklahoma City bombing or anti-government violence, they are seeking to focus the policy debate stirred by the attack not on the militias but on the government agencies that militia members and their sympathizers consider the enemy. . . .

Last week, Gingrich declared that Westerners have a "genuine fear" of the federal government that Easterners and city dwellers should try to understand. . . . Sen. Craig Thomas (R-Wyo.) has declared his sympathy for Westerners angry at government, saying: "I don't disagree with their arguments." And Rep. Helen Chenoweth (R-Ida.) has said plainly that citizens "have a reason to be afraid of their government."

It is not only the most conservative Republicans who have joined the cry for new scrutiny of alleged excesses by federal agents. Sen. Arlen Specter of Pennsylvania, the most liberal member of the GOP presidential field and a subcommittee chairman, jousted with Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) last week over which one of them would preside at hearings into the federal assaults on the Branch Davidian compound and Weaver's home in Idaho.

Self-identified conservatives spent the 1990s relentlessly claiming to believe in principles of limited federal government power, and insisting that our very democracy and basic protections of individual liberty were gravely endangered by the existence of law enforcement and surveillance powers which are a small fraction of those which have been seized and are now exercised by the Bush Administration. And conservatives then demanded all sorts of sweeping Congressional investigations into every allegation of law-breaking by Administration officials, and depicted any resistance or insufficiently vigorous investigation to constitute a "cover-up" that was simply inconsistent with the rule of law and intolerable in our democracy.

It is the case, of course, that hypocrisy is common and our political discourse is not exactly characterized by great intellectual consistency. But when the contradictions spewed by political figures and pundits are this glaring and complete on matters of such central contemporary importance -- when our country's dominant political movement articulates positions which fundamentally contradict virtually every principle it previously claimed to believe in -- shouldn't they at least be asked about these things and compelled to provide some explanation?

Illustrating the utter corruption and dishonesty of Bush followers, both in the Congress and in the pundit class, is accomplished simply by comparing what they said then to what they say now. Isn't this something which the media ought to be doing much, much more of as Bush followers seek to suppress investigations into every allegation of wrongdoing on the part of our highest government officials?

The law as "an important tool"

By Anonymous Liberal

Defenders of the NSA warrantless surveillance program want to have their cake and eat it too. They insist that the NSA program is legal but are entirely unwilling to acknowledge the logical consequences that necessarily follow. Once you've dispatched with the specious argument that the AUMF somehow provided the president with the authority to bypass FISA--an argument which David Kris' memorandum definitively puts to rest--you are left with a simple, undeniable truth: either this program is illegal, or FISA is unconstitutional.

The Bush administration and its apologists, however, are simply unwilling to acknowledge this. In Friday's USA Today, the loathsome Senator Pat Roberts wrote the following in an op-ed on the NSA controversy:

While Congress enacted the Foreign Intelligence Surveillance Act to establish procedures for foreign intelligence surveillance, this law did not, indeed cannot, extinguish the president's constitutional powers. FISA provides one way for him to conduct foreign intelligence surveillance, but not the only way.

Notice how Roberts sidesteps the issue of FISA's constitutionality. Rather than acknowledge the obvious logical consequence of his argument--that FISA is unconstitutional--he instead suggests that FISA merely "provides one way" to conduct foreign intelligence surveillance and that the President is free to use others. This is a variation on the "many tools" talking point that the White House has been using for some time now. For example, in his January 26 press conference, the President said the following:

And FISA's still an important tool. It's an important tool, and we still use that tool. But, also -- and I looked. I said, 'Look, is it possible to conduct this program under the old law?' And people said, 'It doesn't work in order to be able do the job we expect to us do.' And so, that's why I made the decision I made. And, you know, 'circumventing' is a loaded word. And I refuse to accept it, because I believe what I'm doing is legally right.

(Speaking of tools, how did this guy ever get to be the leader of the free world?) In this breathtakingly incoherent response, the President admits that the NSA program is inconsistent with FISA, but at the same time suggests that FISA is important, that it is just one tool in his executive toolbox. This is, to put it mildly, totally absurd. FISA expressly and unambiguously provides that its procedures "shall be the exclusive means by which electronic surveillance . . . may be conducted." In other words, FISA is not a tool, it's THE tool.

This exclusivity provision is not some minor detail or statutory afterthought. It is the key to the entire FISA framework, a provision that, if removed, would render the statute meaningless.

It's important to understand that, prior to the passage of FISA, the only thing constraining the president's ability to conduct foreign intelligence surveillance domestically was his own pledge to uphold the 4th amendment, a pledge which a number of presidents (particularly Nixon) did not take very seriously. The purpose of FISA was to protect the constitutional rights of the American people by imposing reasonable oversight requirements on the use of this executive power. This can only be done by providing exclusive procedures for conducting this sort of surveillance.

If FISA's procedures are not exclusive, if executive branch officials can choose whether to utilize FISA or some alternative protocol of their own design, they will clearly only comply with FISA in those instances where they are sure the necessary factual predicates are met; in all other instances they will use their own secret alternative protocol, which does not require judicial approval. Having a two-track system makes a mockery of the statutory scheme. The exceptions swallow the rule and render it meaningless.

President Bush and Senator Roberts know this, of course, but they continue to insult our intelligence by pretending that FISA still has a useful role to play in a world where the president has the power to conduct exactly the sort of surveillance that FISA forbids. Under the legal theories these men have publicly endorsed, FISA is unconstitutional. But Bush and his defenders refuse to own up to this fact because they know that a number of embarrassing consequences logically flow from it.

They realize it would mean scrapping a statutory framework that has served us well for 28 years and has never been seriously challenged. They know it would mean the entire four year debate over the Patriot Act was a colossal waste of time. And, perhaps most significantly, they know that if FISA is unconstitutional, so too are a great many other laws which they have no desire to call into question (at least at the moment). So instead they proclaim that the NSA program is legal and willfully ignore all the logical consequences of that proclamation.

Can Good Catholics vote Republican?

Bush opponents spend a great deal of time analyzing all sorts of political issues when trying to determine how best to campaign for the 2006 Congressional elections. We hear that Republicans are in serious trouble because of issues such as Iraq, the port controversy, corruption problems, Katrina ineptitude, and a general dissatisfaction with the direction of the country.

All of that may be true, but issues like that are only one level on which these elections are fought and decided. Karl Rove has specialized in winning elections by waging battle on an entirely different level that has little to do with substantive issues and everything to do with cultural symbols and religious divisions -- a level which Democrats want to ignore and seem to be afraid of engaging. But those who want to end the one-party rule under which our country is suffocating have no choice but to engage those levels, and there is no reason at all why they should fear doing so.

One of the most reprehensible (and effective) electoral tactics which the GOP used to defeat John Kerry in 2004 -- and, unquestionably, it is a tactic which Republicans are gearing up to exploit even more aggressively for 2006 -- is the increasingly overt claim that adherence to Catholicism compels a vote for Republicans (and precludes voting for Democrats). It is difficult to overstate the potency and efficacy of that tactic. From Reason Magazine:

Hence, the Republican Party's "Catholic Strategy." Bush strategist Karl Rove identified the Catholic vote as central to his long-term plan to convert swathes of traditional Democratic voters, thereby transforming the Republicans into the majority party. Throughout the 2004 campaign, Rove maintained that, if Bush won the Catholic vote, he would be reelected. Rove was right.

Rove sought to turn out several million additional Catholic voters. Last year, Catholic turnout was 63 percent, up from 57 percent four years earlier, and constituted more than one-in-four voters nationwide, voters disproportionately distributed in key battleground states such as Ohio and Florida. Bush, a Methodist, impressively won 52 percent of the Catholic vote versus 47 percent for John Kerry, only the third Catholic to win a major party's presidential nomination. Only one Democrat since 1952 (Walter Mondale in 1984) had previously lost the Catholic vote by such a margin.

Republicans spent 2004 attacking the authenticity of John Kerry's Catholicism, insisting that good Catholics were compelled to vote for Bush and that Kerry -- to use the GOP's phrase -- was "wrong for Catholics." These religious smears reached their low point with the campaign by certain prominent Republican Catholics to deny communion to Kerry. As the above-quoted passage from Reason illustrates, this attempt to equate religious Catholicism with political Republicanism was as successful as it was despicable. As a result, it is unquestionably clear that this tactic is not going away, but will only intensify.

Last week, Kellyanne Conway, on her National Review blog, mockingly and scornfully reported on a group of 55 Congressional Democrats who -- get this! -- claim to be Catholic and claim that they believe in Catholic principles. Conway dons her most pious sneer and scoffs at the hilarious notion that Democrats could possibly claim -- of all things -- to be Catholic:

Earlier this week, a press release that crowed, "House Democrats Release Historic Catholic Statement of Principles" was issued in the names of 55 House Democrats. These "Catholic" "principles" from non-principal Catholics were at least as ambitious (and absurd and audacious) as those existentially mouthed by John Kerry during his run for the Presidency, see, e.g, his statement in the summer of ’04 that "Life begins at conception."

According to the solemnly religious Conway, it's so painfully obvious that any Good Catholic could only be a Republican, and that this silly little attempt by Democrats to masquerade as people with religious beliefs will never work:

Reasonable limits to unfettered access to abortion, like a ban on late-term procedures that the American Medical Association has said are not medically necessary and the interstate transport of minors to receive abortions, enjoy majorities of support among Americans. And Catholics join people of all faiths in their deep opposition to totally stripping religion form (sic) the public square, including ripping God from the Pledge of Allegiance and continuing to ban prayer in schools.

From dust this statement of principles was made, and to dust it shall return.

Attention should be paid to Conway's rantings. Conway and her husband, George, were given a National Review blog for a reason. As I've previously documented, those two were among the leading smear merchants of the 1990s who built their political notoriety by trafficking in the lowest and filthiest political tactics from the sewer. They are both well-connected to the GOP establishment and are cogs in its political machinery. Their blog is undoubtedly a harbinger of the gutter tactics that will be used this year by Rove and the GOP, who -- I hope Democrats are appreciating -- are not going to simply allow Democrats to waltz into control of the House (with the subpoena and investigative power it entails) without a vicious fight that recognizes no limits.

One of those tactics is going to be an escalation of the exploitation and inflammation of religious divisions. On his blog GOP Bloggers, Mark Noonan effusively celebrated an e-mail he received from Ken Mehlman which touts George Bush's commitment to Catholic values, and in which Mehlman quotes Jack Kelly, the Director of the RNC's Catholic Outreach program, as follows:

"Working through the RNC's Political Division we are committed to an expansive outreach program that will not just maintain but increase the support shown by Catholics in 2004. The Republican principles of a strong commitment to a culture of life and to the economic and national security of our country resonates with active Catholics. Our goal is to let Catholics know they are the key to the future success of the Republican party."

Noonan gave a hint of what is to come this year by claiming that GOP's pro-Catholic approach stands "[i]n contrast to the insult offered Catholics by the Democrats on the Judiciary Committee" (meaning opposition to Sam Alito's nomination), and then spat out this religiously exploitive claim, which we are going to be hearing a lot more of:

Because we aren't wanted in the Democratic Party. Oh, sure, the Democrats will take a "Catholic" who essentially denies his faith - like a Kennedy or Kerry - and comes out against core Catholic morality on issues such as abortion, but let there be a Catholic who takes his faith seriously, and the Democrats want nothing to do with him.

There you have it: Democrats hate real Catholics who believe in Catholicism rather than just pretending to believe in it. The only place for real Catholics is the Republican Party. And the media has clearly internalized this theme. To them, the notion that any Democrat could possibly claim to be Catholic is just so very hilarious and absurd. Everyone knows that all real Christians are Republicans and that any Democrat claiming to be religious -- like John Kerry, or Bill Clinton -- is just doing that because he knows that it will be politically helpful, not because he's genuinely religious. That's just obvious.

The reason why it is so nonsensical that this tactic works -- and so infuriating that Republicans are allowed to get away with this -- is because scores of Republican policies, including their most prominent ones, are plainly contrary to Catholic doctrine and have been vigorously condemned both by John Paul II and by the current Pope. Those policies could not be any more anti-Catholic.

Begin with George Bush's flagship policy -- the invasion and occupation of Iraq. From Fox News, two weeks before the invasion of Iraq:

Pope John Paul II and top Vatican officials are unleashing a barrage of condemnations of a possible U.S. military strike on Iraq, calling it immoral, risky and a "crime against peace."

The unwavering stance has made the pope one of the most visible opponents of war in current circumstances, and a rallying point for peace groups and politicians who seize on his words counseling against war.

The Vatican -- including the prior Pope and the current one -- has emphatically condemned the Administration's policy of pre-emptive war generally as immoral and contrary to core Catholic principles:

Pope John Paul II (see p. 8-9), Cardinal Ratzinger, Archbishop Martino (President of the Pontifical Council for Justice and Peace), the influential and authoritative Jesuit journal in Rome, Civiltá Cattolica, and the U. S. Catholic Bishops. have all denounced the plans of President Bush to attack Iraq.

Cardinal Ratzinger has said, "A preventive war is not in the Catechism."

Civiltá Cattolica points out that an American attack on Iraq would be motivated in large part by political and economic reasons rather than military necessity and rejects the Bush argument that a preventive war should be considered a defensive action. Archbishop Martino said that "a preventive war is a war of aggression."

And Republican fare no better when it comes to pro-life issues. One of George Bush's most central political positions as Texas Governor was his fervent belief in the death penalty, and he presided over a parade of executions. And one of the current bugaboos of national Republicans is the reliance by the Supreme Court on precepts of "foreign law" -- something they did most prominently when blocking the execution of a juvenile offender on the grounds that such executions constitute "cruel and unusual" punishment (as demonstrated, in small part, by the fact that such a practice is banned in most of the world).

And yet, few things are more anathema to Catholic doctrine than the state-sanctioned killing of human beings; it is one of the central principles of the Church's pro-life position:

This principle is set forth in the new Catechism of the Catholic Church:

If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person. (Catechism of the Catholic Church, 1994, Par. 2267)

More recently Pope John Paul H in his eleventh encyclical entitled "The Gospel of Life" (March 25, 1995), toughens the church's stance on the death penalty. In this papal letter is found one of Catholicism's strongest condemnations of capital punishment. . . .

In this recent teaching, Pope John Paul II affirmed the catechism's teaching that the death penalty is acceptable under some conditions, but in the encyclical he said such conditions are very rare or even non-existent in the modern world. (Par. 56) In the encyclical, the pope listed the death penalty as one of the pro-life issues calling for church concern and action.

The only reason Republicans get away this tactic is because Democrats let them. It's as though Democrats find political appeals of this sort so distasteful and ugly that they just hope they can ignore them and they will go away. They aren't and they won't. Democrats have no choice but to engage these tactics directly and to expose their corruption -- not by whining about their unfairness or protesting them with platitudes, but by directly confronting their substance and turning them to their advantage.

The reality is that Catholicism translates politically into support for liberal views at least as much as it does for conservative views. Large majorities of Catholics support abortion rights generally, stem cell research, and oppose further tax cuts. There are also dormant and lurking religious tensions between evangelicals and Catholics which Bush opponents allow to remain hidden and unexamined, while Republicans exploit every cultural and religious division they can find. There is no virtue in continuing to win policy debates while losing elections due to a ceding of these submerged and ugly battlefields.

Republicans have all sorts of vulnerabilities on these issues. So many of their leading pundits and political figures have personal lives filled with private moral atrocities or activities which so plainly violate the religious and cultural principles they claim to embody. Their flagship policies are squarely prohibited by core Catholic principles and have been condemned as immoral and unjust by the Vatican. How can that same party parade around as the true party of Catholicism?

It would be preferable if our elections were decided exclusively on the substance of the issues. But they just aren't, and pretending otherwise ensures defeat. The Republican Party is no more the party of Catholicism than it is the party of moral piety or the restoration of honor and integrity in government. Not only does adherence to Catholicism not compel a vote for Republicans; if anything, it can be argued much more persuasively that Catholicism precludes such a vote. Democrats have to aggressively make that case, and related points, no matter how much they would prefer not to have to. If they don't, we will continue to be a country whose elections are decided by filth merchants and rank religious manipulation.

A window into the Bush Administration's legal manuevering

Guest Post - by Anonymous Liberal


On Thursday the President once again signed into law a statute--the Patriot Act renewal--which amends the Foreign Intelligence Surveillance Act (FISA). The Patriot Act made many significant changes to FISA--changes which were made permanent by this bill--but there is one crucial provision that has not changed; FISA still clearly states that its procedures "shall be the exclusive means by which electronic surveillance . . . may be conducted." In other words, the President has once again reaffirmed the validity of a law which expressly criminalizes the type of warrantless surveillance which his administration has been conducting for four and a half years.

Meanwhile, documents released on Thursday--and highlighted by Glenn--provide a window into the bizarre legal maneuvering within the administration following the public disclosure of this program. The central figure in these documents is David Kris, who was the Associate Deputy Attorney General from 2000-2003. Marty Lederman, who worked with Kris at the DOJ, has written an excellent post discussing the significance of these documents. As Marty explains, Kris' memorandum thoroughly dismantles the administration's legal arguments, particularly the assertion that the AUMF somehow provided the President with the statutory authority to bypass FISA.

Marty also confirms something that seems pretty clear from reading the documents: despite being the person at the DOJ most knowledgeable about FISA, Kris was left entirely out of the loop with respect to the NSA program. That's a rather astounding fact given that the administration sent Kris to Congress on several occasions to testify about FISA. For example, on September 10, 2002--well after the NSA program began--Kris testified before the Senate Judiciary Committee and said the following: "Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year." Keep in mind that "at this time last year" the September 11 attacks had not yet occurred.

Perhaps even more significantly, Kris' emails reveal that, as late as January 2006, the administration's legal justifications for the NSA program were still highly fluid and evolving. It's as if the DOJ never really gave the issue much thought until the New York Times broke the story. In a Dec. 22, 2005 email, Kris writes:

[I]t looks like you guys are leading with Article II and using the AUMF as support, rather than leading with the AUMF interpreted broadly in light of constitutional avoidance doctrine, and then falling back on Article II. If I'm reading it right, that's an interesting choice--maybe it reflects the VP's philosophy that the best defense is a good offense.

As we know, the DOJ's White Paper took the approach Kris suggested, putting primary emphasis on the AUMF and constitutional avoidance arguments and relying on the Article II argument only secondarily. And for good reason. In a one-sentence email on Dec. 21, Kris pointed out the rather glaring conceptual flaw in the administration's Article II argument:

"My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation" (emphasis added).

You know you don't have a very strong argument when it takes just one sentence to destroy it. Perhaps that's why the DOJ's white paper is unsigned. I doubt any aspiring attorney wants to be forever associated with those legal arguments.

All of this just makes me more curious to see the official legal opinions on which this program is based. Why was all this last minute legal brainstorming necessary if the administration had already submitted this program to intensive legal review, as it claims? Why did the administration feel the need to reach out to Kris in 2006--in the private sector--when it had left him entirely out of the loop when he actually worked for the DOJ? Nothing about this makes any sense to me. Someday perhaps Jack Goldsmith can explain to us why the administration is so afraid to release his 2004 OLC opinion. I have a guess, but at this point, who really knows.

Arlen Specter - resolute maverick or compliant pet?

I can't put my finger on exactly why this is the case, but there is something about this photograph -- showing Arlen Specter standing and grinning at George Bush's side yesterday at the White House ceremony when Bush signed the renewed Patriot Act into law -- that speaks volumes about whether it is rational to place one's hopes for a meaningful Congressional investigation into the NSA scandal on the shoulders of Arlen Specter:

















As usual, the Leader is adorned with glorious Orwellian imagery - the "Protecting the Homeland" slogan embedded into the American flag. But the true revelation in the photograph, for me at least, is Specter. While we ought to press ahead with as much pressure and encouragement as possible directed towards Specter to follow through on his commitments to have the Judiciary Committee investigate the NSA scandal further, there's just something about this photograph that seems significant to me, and less than encouraging.

Why Katrina matters (still)

GUEST POST - by Film Diva


Note (from Glenn): I receive a fairly regular flow of e-mails asking me why I don't address this issue or that issue which is, in the view of the inquirer, The Issue of Supreme Importance. Usually, there's an implicit (and often explicit) chiding component to the inquiry -- a suggestion that I am being lax (or worse) in failing to address Incomparably Important Issue X.

Usually, the reason I haven't addressed the issue in question is simply because I don't think I have anything to say about it that isn't being said in many other venues. One can develop an expertise or form a unique perspective only with regard to a finite number of issues, and I try only to blog when I think I have something worth saying.

In any event, ever since it became apparent to me that I would have to reduce my blogging for a few weeks in order to devote more time and attention to that still-unrevealed project, I began responding to such inquiries -- at least when they came from regular commenters here -- by telling them that they should write a post about the issue that they think is so important (rather than assigning that task to me) and I will post it as a guest post.

Following is the first such post from the superb and astute commenter Film Diva, who wanted to know why I haven't written about the Bush Administration's failures re: Katrina, in response to which I asked her to write a post containing what she thought should be said on the issue:

______________________________

By Film Diva

Beyond its status as one of the worst natural disasters in American history, beyond the fact that within one week Katrina displaced more Americans than at any another time in our history (according to CBS News, Katrina "displaced some 770,000 residents — the most since the great Dust Bowl migrations of the 1930s. The storm destroyed or made uninhabitable some 300,000 homes"), even beyond the fact that Federal, State and local responses to Katrina have been met with polarized critique largely falling along party-lines, Katrina (and subsequent actions in response to it) matters urgently for every American.

CRITICAL INFRASTRUCTURE:

It took hundreds of years (350 of it with African slave or Asian conscripted labor, not to mention the indentured servitude of Irish and other European immigrants) to build the infrastructure of our American cities (the conditions of our roads, power grids, reservoirs, dams, you name it). It is also one of the most critical issues facing every state in America. These things don't build themselves, and they certainly aren't paid for by private corporations out of their profits (not even the energy industry). Are we prepared to abandon our cities once they reach a critical damage-to-repair-cost ratio? Have we come to that place in (the decline) American history where we must abandon whole regions for lack of funding?

FAILURE TO RESPOND:

In the House report on Katrina entitled: A Failure of Initiative this is clearly pointed out: "Government failed because it did not learn from past experiences, or because lessons thought to be learned were somehow not implemented. If 9/11 was a failure of imagination, then Katrina was a failure of initiative. It was a failure of leadership" (emphasis in original).

Katrina was not a tropical storm, nor was it a panhandle hurricane, roaring along a coastline, displacing hundreds of folks. Katrina struck one of the most vulnerable sections of the US -- vulnerable because of the relative poverty levels in the area, vulnerable because of the state of the marshlands and coastline after literally hundreds of years of mismanagement, vulnerable because of the high percentage of oil and gas that flows into and out of the region. As users of petrol energy all over the U.S. know, Katrina's disruption, in addition to the political and military issues we are having with virtually every supplier on Earth, is still rippling through the economy.

And the next hurricane season is about to begin. Thanks to the transcripts we know the Director of the National Hurricane Center specifically told the President and FEMA in briefings that Katrina would be a disaster: "Only the Labor Day hurricane of 1935 and Hurricane Camille had more pressure."

From the House Report:

Our investigation revealed that Katrina was a national failure, an abdication of the most solemn obligation to provide for the common welfare. At every level – individual, corporate, philanthropic, and governmental – we failed to meet the challenge that was Katrina. In this cautionary tale, all the little pigs built houses of straw. Of all we found along the timeline running from the fictional Hurricane Pam to the tragically real devastation along the Gulf coast, this conclusion stands out: A National Response Plan is not enough. What’s needed is a National Action Plan. Not a plan that says Washington will do everything, but one that says, when all else fails, the federal government must do something, whether it’s formally requested or not. Not even the perfect bureaucratic storm of flaws and failures can wash away the fundamental governmental responsibility to protect public health and safety (emphasis mine).

How is Bush responsible? Well, in my family, we learned the importance of leading from the front. As a leader it's important that our President show up for catastrophic events. Take this gem of misdirection from the White House "Lessons Learned" about Katrina. In a foreword similar to the House report, but with a critical lack of date/time information, makes President Bush appear to have launched himself into the center of the catastrophe instead of the truth which is that he flew over the flooded city of New Orleans in Air Force One -- not making this appearance until days later:

Even as parts of New Orleans were still under water, President Bush spoke to the Nation from the city’s historic Jackson Square. He stated unequivocally, that “[f]our years after the frightening experience of September the 11th, Americans have every right to expect a more effective response in a time of emergency. When the federal government fails to meet such an obligation, I, as President, am responsible for the problem, and for the solution.”

Watching the AP video report on the Katrina briefings, it's clear that, in fact, the President did not feel responsible for the problem or its solution. Instead, continuing his curious mix of forcing states to rely on their own resources (FEMA withheld resources waiting for the State and Local authorities to ask for them and let’s not forget the latest uproar among State Governors over the Medicare plan) and consolidating power in the Executive branch (I can't even get into the use of illegal wiretaps here).

Bush's utter lack of engagement in the unfolding of this crisis is criminal. Period. Hell, the National Guard is supposed to perform disaster relief functions, however as they are subject to federalization (and are the Pentagon’s answer to deployments lasting up to 3 years), then clearly we, as Americans, can’t rely on their presence (as the folks in LA and AL found out when their own Nat’l Guard was in Iraq during the storm thus delaying response while units were mustered from thousands of miles away).

And it’s not enough for BushCo to cite faulty intelligence from state and local officials. We know from various sources (including the above-referenced House report) there was a “lack of Federal representatives in the city” even “Louisiana State Senator Robert Barham, chairman of the State Senate's homeland security committee, summed up the situation in Louisiana by stating, ‘People could not communicate. It got to the point that people were literally writing messages on paper, putting them in bottles and dropping them from helicopters to other people on the ground.’” (emphasis mine)

LA Congresswoman Landrieu said in her speech requesting the initial emergency aid, “Let’s fix the problem, not the blame.” Six months later, we’re still grappling with it.

WHAT’S STILL WRONG

There is so much that isn’t going right with the rebuilding in New Orleans it’s hard to decide where to begin. I’ll highlight just a few.

Criminal Justice (from KATRINA ACTION NETWORK):

In the wake of Katrina, New Orleans (and I’m sure many other parishes and counties throughout the Gulf States) lost court records, evidence, the courthouse and the jail. What does this mean for criminal justice in a part of the country notorious for its lack? Just what you think it does: MSM outlets hype the fear that rapists and murderers are going free (no doubt true), meanwhile petty thieves and innocent citizens languish in a prison system that no longer allows for representation, or a speedy trial. Basic constitutional rights are being denied.

* The poor - over 80% of defendants qualify as indigent -- too poor to afford an attorney. (MCC report "Performance of the New Orleans Criminal Justice System 2003-2004"

* Low-level offenders - 85% of the people arrested in New Orleans are arrested for non-violent offenses. 67% of all court convictions are for simple possession. (MCC report "Performance of the New Orleans Criminal Justice System 2003-2004")

* Innocents - Louisiana has the highest rate of wrongful convictions in the country. (Professor Samuel Gross Univ. Of Michigan, EXONERATIONS IN THE UNITED STATES 1989 THROUGH 2003)

How differently do you think YOUR municipality will act in the event of catastrophic destruction of the physical infrastructure of justice?

Rebuliding:

According to a February 10, 2006 report filed with the LA TIMES, there are literally TEN THOUSAND trailers sitting in Arkansas right now, unable to be delivered because no one (meaning BushCo or the state/local officials) has cut through the red tape of FEMA restrictions regarding their placement (one of which is a NO FLOOD PLAINS restriction – clearly a big problem for almost any Gulf Coast resident hoping to return).

Even upper-middle class White folks are having a tough time getting their homes rebuilt. And these are people with insurance, relatives with a plot large enough to host a FEMA trailer, and access to health care (below is from the CBS news story at the top).

Ann and George Yarbrough

This was the Yarbroughs' retirement home, a spot by the sea near their grandchildren. But Katrina wiped their two-story house off the face of the earth when the eye of the storm came through Waveland, Miss., on the Gulf Coast. While almost all of their possessions disappeared with the wind, they knew they would return and rebuild. They finally received a FEMA trailer in December and parked it on their daughter and son-in-law's lot, not far from their own. Just this week, the couple received the architectural plans for their new, smaller home — to be raised 24 feet above ground. They have a builder lined up, but have to wait until he is available. "Seeing these plans and knowing that we are going to be able to rebuild makes living in this trailer worthwhile," says Yarbrough, wiping back tears.

Imagine what it must be like to someone who was living on the financial margins of American life. I am. As a young Angeleno renting (because the housing market out here is outrageous), I would be hard-pressed to recover from a total loss. I think most of the folks out here who have purchased homes and are paying interest-only loans would be hard-pressed as well. Although they may not know it yet. Bush’s plan to give out $150,000 to homeowners (meaning renters get diddly) is clearly a mid-term election year ploy coming 6 months after the fact. Too little, too late for folks looking to rebuild their entire lives from top to bottom. Especially given the number of outside investors looking to (finally) gentrify the 9th Ward.

Physical and Mental Health:

Folks are still finding bodies down there. At least 1300 people are unaccounted for, many of the remains haven’t been identified. This is in addition to the massive pollution of Lake Pontchartrain and the city itself. If the EPA is issuing warnings then trust that the truth is much much worse. The White House’s own Lesson’s Learned report gives ominous statistics, “The storm’s surge flooded three Superfund65 toxic waste sites in the New Orleans area, and destroyed or compromised at least 170 drinking water facilities and forty-seven wastewater treatment works along the Gulf Coast.” (Notes from original, emphasis mine).

This should be something that unites folks across the aisle, but the MSM has ADD, and Democrats haven't pushed hard enough to keep this in the national consciousness even though it’s clear from the level of support the American Red Cross has received (and other charities like Habitat for Humanity) that it has broad popular support and isn’t one of those Not In My Backyard issues because, thanks to 9/11, we can all imagine a catastrophe in our home towns. If ever there was an issue that would turn the worm of Republican base support in the so-called red-states this is it.

Even country music stars Faith Hill and Tim McGraw are speaking out against the President’s lack of leadership and initiative. So, volunteer, donate, agitate, whatever you can do to move this issue to the forefront of the National Debate. There’s a red flag on the field: BushCo is so unplugged from the reality of being middle-class in America that the Houston Astrodome looks like upward mobility (at least to his mom), homeowner grants leave non-property owners swinging in the wind (hello, anyone under the age of 35), and faith-based initiative funding has a place in Federal budgeting (I can't wait for the Church of Satan to apply for one of these grants...or the Scientologists). Bush can’t win on this issue because he’s already failed.

Sen. Rockefeller praises the GOP's actions on the Intelligence Committee

(updated below - updated again with response from Sen. Rockefeller's spokeswoman)

(updated again re: Portgate)

No matter how strong of an immunity one thinks one has constructed against being shocked and disgusted by the acts of national Democrats, it always turns out that it's never actually strong enough. On Tuesday, after the Intelligence Committee vote not to investigate the President's illegal eavesdropping on Americans, Sen. Rockefeller angrily said that the Committee was "under the control" of the White House.

What a difference a day makes. Here is the description from The New York Times of what Sen. Rockefeller did yesterday:

But on Wednesday, the Democratic vice chairman of the committee, Senator John D. Rockefeller IV of West Virginia, issued a conciliatory statement, saying that while he favored a full investigation, a committee decision on Tuesday to appoint a seven-member subcommittee to oversee the N.S.A. eavesdropping was "a step in the right direction."

It's difficult to add anything to that, except to note that Sen. Rockefeller did this because he apparently found out that he hurt the feelings of his Republican friends and colleagues on the Committee and decided that that wasn't a very nice or collegial thing to do, and he should therefore make them feel better by being conciliatory:

Pat Roberts said yesterday that he resented being portrayed as what he called a "lap dog of the administration" . . . .

The Republicans were miffed that Mr. Rockefeller, the committee's ranking Democrat, had portrayed them as caving in to White House pressure. On Tuesday, Senator Chuck Hagel, Republican of Nebraska and another author of the proposal, called that notion "laughable."

Mr. Hagel said he and Senators DeWine and Snowe were "three of the most independent Republicans" in the Senate and added, "I have never been accused of buckling to White House pressure."

I'm glad to see that Sen. Rockefeller feels bad about his impetuous remarks where he insinuated that Sens. Hagel, Snowe and DeWine -- "three of the most independent Republicans" in the Senate -- buckled under to White House pressure. That was a completely unfair accusation that had no basis to it at all. Why ever would he think that?

Of course, the reason Democrats have been doing poorly in elections is because they are way too mean and critical of Republicans and it's nice to see them finally looking for the good in their opponents' decisions and actions - just like Republicans always do for them. It is particularly heartening to see the ranking Democrat on the Senate Intelligence Committee praise the Committee's decision not to investigate allegations of the President's law-breaking and to eliminate judicial oversight for eavesdropping as a "step in the right direction."

To make full amends for his mean and inappropriate comments about his distinguished Republican colleagues, maybe Sen. Rockefeller -- after tearfully apologizing on the Senate floor -- can be the lead sponsor of the Terrorist Surveillance Act of 2006 which will make legal the President's lawless warrantless eavesdropping on Americans. If he wants to show David Broder, Chris Matthews and Fred Hiatt that he's a serious Democrat who feels genuine remorse for what he did and that he understands the need to defeat Al Qaeda, nothing short of that will suffice. And the most amazing aspect of this whole episode is that it would not be particularly surprising if he did do that.

UPDATE: The New York Times editorial page is one of the very few journalistic corners which understands the true magnitude of this scandal, and today published an excellent editorial which included this:

The Senate Judiciary Committee is still looking into the wiretapping. That committee should have plenty of incentive to go forward — its chairman, Senator Arlen Specter, was righteously angry when he received a letter in which Attorney General Alberto Gonzales implied that there was more warrantless spying we don't know about. Mr. Gonzales won't even say that Mr. Bush understands it is blatantly illegal to spy on communications within the United States without a warrant. Nevertheless, there's not much cause for hope: Mr. Specter has a sad habit of bowing to the right wing when the chips are down.

There are moments when leaders simply have to take a stand. It seems to us that one of them is when Americans are in danger of the kind of unchecked surveillance that they thought had died with J. Edgar Hoover, Watergate and spying on Vietnam protesters and civil rights leaders.

Save some anger in the tank. You'll need it for when Arlen Specter decides that he's not that angry after all and calls off the hearings in light of the newfound cooperation which has arisen between the distinguished friends on both sides of the aisle.

UPDATE II: I received the following e-mail just now from Wendy Morigi, spokewoman for Sen. Rockefeller:

"Your blog was forwarded to me. It's clear to me that you’re basing your statements on the New York Times story and that you don't have the Senator's full statement, which I'm including below. I would in no way agree with the NY Times characterization that the following statement is 'conciliatory'.

"Senator Rockefeller’s point was that since the Republican’s refuse to do an investigation, a subcommittee would at least provide more oversight than what we have now. If you would like to be added to our distribution list, I'm happy to do so to ensure that you have accurate information in the future."

Best,

Wendy Morigi

___________________

FOR IMMEDIATE RELEASE CONTACT: Wendy Morigi
March 8, 2006 (202) 224-6101

Statement from Senator Rockefeller on the Creation of a Senate Intelligence subcommittee to provide Oversight of NSA program

"At the end of the day, our goal should be to have the most effective and legally sound counterterrorism programs possible.

"A thorough review by the full committee would have given the American people much more confidence in achieving that goal, and I will continue to fight for the full committee to have access to this program.

"In the meantime, the creation of a subcommittee to conduct greater oversight is a step in the right direction.

"I have appointed Senators Levin and Feinstein to serve with me on the panel. As the most senior Democratic members of the Committee, I am confident that they will bring enormous expertise in intelligence matters, as well as a commitment to thoroughly understanding the program and its implications.

"Senator Levin brings a depth of experience on national defense programs through the Armed Services and Intelligence Committees. As a member of the Judiciary Committee, Senator Feinstein brings a critical understanding of judicial review and constitutional protections.

"Now, the big test will be whether the seven member subcommittee will receive sufficient information to fully scrutinize the operations of the program and answer the critical legal and constitutional questions before them.

"In addition to White House led briefings, I strongly believe that the subcommittee immediately should have access to the answers of the 450 questions that I submitted to the NSA last week.

"This information will help to guide all members of the subcommittee about the extent of the program and the critical issues at stake. I also hope the subcommittee members can spend sufficient time at the NSA reviewing the operation of the program and getting their own questions answered.

"I continue to believe that legislating without knowing all the facts could do more harm than good. I’m hopeful that all members of this new panel will share the same goal of informing legislative debate before taking steps to strengthen the program for the future.”

To be honest, I really don't see how the Senator's full statement is any less conciliatory than The New York Times story suggested it was. It looks extremely conciliatory to me, to put it generously.

There's just a tone deafness in Washington. They don't recognize just how corrupt these actions are and how furious and disgusted so many Americans are as a result. But, like anything, that can be changed. At least they're hearing these things and are concerned enough to respond, for whatever that's worth. I described more of my views on the Rockefeller statement here in Comments.

UPDATE III: Author and military expert Lucian Truscott IV has posted a detailed and very interesting analysis as a guest post at Digby's which explores the financial motivations and cronyism aspects underlying Bush's conspicuous adamancy about proceeding with the UAE/Port deal.

Personally, I think that what motivates Bush's recalcitrance on this issue more than anything else is his belief that national security is his domain, where he exercises unchallenged reign and resents any questioning or interference with his decision. But Truscott makes a good case, with some original reporting and ample documentation, that classic Bush cronyism plays a significant role.

A.L.'s observations on the surveillance deal

(updated below - updated again)

By Anonymous Liberal

Glenn did a fantastic job on Wednesday explaining why the surveillance deal struck by the White House and the Republican Senators on the Intelligence Committee is a joke, and I just want to throw out a few additional observations. Glenn noted that "[w]hat the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities."

Based on this morning's Times article, it may actually be worse than that. Under FISA, the government must get a judge to sign off on each individual warrant before surveillance begins (or within 72 hours). It appears that under this "compromise," the administration may conduct surveillance without any outside approval for up to 45 days. At that point they must either seek a FISA warrant or explain to the special subcommittee why they need to continue without a warrant. In other words, the legislation replaces FISA judges with no one.

And let's be realistic,