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

Tuesday, January 03, 2006

What are Democrats so afraid of?

Many Democrats frequently blame a whole array of culprits for Bush’s ongoing ability to defeat his political opponents -- from a frightened public to a propagandizing Fox News to a passive corporate media to Karl Rove’s manipulation. All of those may be factors, but as the NSA scandal demonstrates, the primary culprit which allows George Bush to skate free time and again is that Democratic political leaders are frightened, tentative, apologetic and are plagued by a compulsive aversion to head-on controversy or conflict.

This weekend’s Fox News Sunday with Chris Wallace illustrates the problem perfectly, and painfully. Wallace’s guests were Senators Mitch McConnell and Chuck Schumer, and the first issue they discussed was the NSA scandal.

Chuck Schumer has one of the safest Senate seats you could ever possibly want. He has sky-high popularity ratings, was re-elected just last year in a landslide, and represents one of the bluest of the blue states. There probably is no criticism he could make of the Bush Administration on this scandal which would be too extreme for his political interests. He is free to let loose.

And yet he doesn’t. When he talks about the NSA scandal, he sounds like a frightened, overly cautious lawyer afraid to make a single declarative statement of any significance. On Fox this Sunday, he had one opportunity to freely state his views on Bush’s NSA lawbreaking and here’s what he said:

SCHUMER: Well, the bottom line is I think everyone, Democrats and Republicans, wants to give the president the tools that he needs to fight the war on terror. No question about it. But the way our country works is the balance between security and liberty is a very delicate one.

And obviously, in times of war, in times of terrorism, the balance shifts towards security, and it should. There are some on the doctrinaire left who say never change it. I don't agree with that. Almost no Democrat does.

But when you want to shift that balance, you have an open debate, you have some rules that are set, and then you have an independent arbiter look at those rules. That's been the tradition. That's worked for decades, whether it's wiretaps or the FISA law.

And the problem here is that the president thought there was a problem. That's legitimate. But instead of coming to people and saying okay, I need changes in the law, he just changed it on his own.

And today's revelations, as you mentioned, Chris — today's revelations really heighten the concerns about this. When John (sic) Comey, who was one of the premiere terrorism prosecutors in this country, said that he thought this program violated the law, when it's reported that people at the NSA — and none of these people are left- wing liberals — had real doubts about the program, it calls into question the way the president and vice president went about changing it.

You don't just change it because the president wants to change it. You have a debate. You go to Congress.

It’s impossible to even know what Schumer is talking about here. In order to avoid stating that George Bush broke the law, Schumer three times – three times – referred to Bush’s having "changed it". And he said it a fourth time in his next answer when explaining how -- of course -- we need hearings before we can know what happened here, and he tepidly (and incoherently) described this scandal being about nothing more than the President’s "unilaterally changing the law because the vice president or president thinks it's wrong, without discussion or change."

So the problem for Schumer isn’t that George Bush broke the law here and claims that he has the right as a wartime President to act contrary to laws generally. No, that’s much too strident, conflictual and clear. He can't say that. The problem is merely that it’s a "tradition" to talk first with Congress before the President "changes" the law.

What does any of this even mean? George Bush didn’t "change" the law. A President doesn’t have the ability to "change" a law. There is no such thing in our system of Government as a President "changing" a law. That’s the whole point. A President can only do one of two things to a law – he can abide by it, or he can break it. And George Bush broke the law, but Charles Schumer, for some reason, is afraid to say so.

So what he does is dress up his statements in all sorts of apologetic, half-hearted statements working at cross-purposes – with his one chance to talk about the President's law-breaking and to tell the public why this is a scandal that matters, Schumer first talks about how the left-wing of his own party needs to be condemned, that the President of course needs heightened tools on terror, that we need hearings to look into this more, that the problem here is that the President should have abided by "tradition" and come to the Congress and we need an "arbiter".

Is any of that supposed to move any one to outrage, or even interest? If the Democratic leaders themselves don’t take seriously the premise that George Bush broke the law and that he literally insists that he has the power to do so, why should the American people take it seriously? The Heretik has more on Schumer's horrendous performance, which is not an isolated case for the Democrats.

And now compare Schumer’s mealy-mouthed apologias to Mitch McConnell's statements. McConnell doesn’t need any of those silly hearings to know what happened here. He already knows. George Bush did nothing wrong. He was protecting the American people. And the real outrage is that these Democrats and their subversive allies at The New York Times are helping al Qaeda against the American people by leaking all of this information about George Bush's efforts to fight against the terrorists:

Well, we'll certainly take a look at that, but thank goodness the Justice Department is investigating to find out who has been endangering our national security by leaking this information so that our enemies now have a greater sense of what our techniques are in going after terrorists.

The overwhelming majority of the American people understand that we need new techniques in the wake of 9/11 in order to protect us. The president feels very, very strongly that he's acted constitutionally.

As you know, Chris, the leaders of Congress were briefed. They didn't choose to object or to raise the notion that there should be additional legislation. This needs to be investigated, because whoever leaked this information has done the U.S. and its national security a great disservice. . . .

The American people, I think, are not going to think very kindly of efforts to restrict this very, very narrow activity that's been a factor, I'm confident, in protecting us since 9/11.

You don’t hear McConnnell begin his answer by scolding the right-wing of his party. You don’t hear him engaging in all sorts of balanced statements or apologetic, non-committal nonsense. His message is clear, straightforward and issued without fear of offending anyone and without any shame. George Bush did the right thing and his opponents who are making hey out of this situation belong in prison for trying to help terrorists harm the American people.

If this is how Democrats are going to articulate their position with regard to this scandal, not only will it not harm George Bush, it will probably end up helping him. Compare the tepid, nonsensical blathering of Chuck Schumer to how intellectually honest conservatives have expressed their disapproval of George Bush’s conduct. Here is former Reagan Administration Justice Department official Bruce Fein speaking clearly and forcefully on this issue:

Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand.

As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."

The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war . . .

Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.

And then there is Bob Barr, former Republican Congressman of Georgia whose conservative and salt-of-the-earth credentials are above reproach. He was the primary sponsor of the Defense of Marriage Act, after all. Here is Barr excoriating Bush defender Dana Rohrbacher:

BARR: Here again, this is absolutely a bizarre conversation where you have a member of Congress saying that it's okay for the president of the United States to ignore U.S. law, to ignore the Constitution, simply because we are in an undeclared war. The fact of the matter is the law prohibits -- specifically prohibits -- what apparently was done in this case, and for a member of Congress to say, oh, that doesn't matter, I'm proud that the president violated the law is absolutely astounding, Wolf.

If Democrats like Schumer are really so afraid to make clear, unequivocal statements that George Bush broke the law, then they should at least hide behind the conservatives who are saying these things. Why can’t Chuck Schumer go on Fox and say: "Former Reagan Administration official and life-long conservative Bruce Fein said that George Bush broke the law, that what he’s doing is dangerous, and impeachment is the only tool we have to stop a President who is intent on breaking the law?"

But why aren’t prominent Democrats themselves speaking clearly and assertively about what George Bush did here? If Democrats generally want to project some sort of restrained, always-balanced, prissily careful image (even though Republicans have benefitted greatly from doing the opposite), fine. But there ought to at least be some prominent Democrats who inject clear and decisive declarative statements about George Bush’s law-breaking into this debate before it is too late.

The blogger Swopa of Needlenose has remarked on the fact that Democrats don’t have designated "flame-throwers" -- elected officials who are willing to go a step or two further than the more establishment representatives in attacks on the other party. When Republicans want to make their most extreme attacks on Democrats – that they are traitors, cowards, working in tandem with al Qaeda – you hear prominent GOP Senators from Jon Cornyn to Pat Roberts and Mitch McConnell making the case. Prominent Republicans unequivocally advocated Bill Clinton's impeachment at a time when most people thought it was unthinkable, and they kept advocating it until Clinton was impeached. To hear similar resolve from Democrats, you have to work your way to the obscure back benches of the House.

And when there are finally prominent Democrats who do stand up and make strong, definitive statements of principle against George Bush, Democrats become petrified and actually turn on their own in a way that Republicans never would. Jane Hamsher recently described that pitiful dynamic this way:

The Joe Bidens of the world think they appear strong and manly for such stances, but they only wind up looking like battered wives who bat their eyelashes and blow kisses at the men who continue to whallop them. And when someone really stands up to the bullying Republicans like Howard Dean did when he said they were the white, Christian party and Tom DeLay belonged in jail, the thoroughly useless Bidens and Bill Richardsons and Nancy Pelosis and Barak Obamas (yes, I said it) make Republican critique superfluous as they come out and discipline him themselves.

Every time we get one of these Schumer-McConnell type match-ups, it invariably resembles some sort of grotesque sadomasochistic ritual where the Republican beats the Democrat over the head as hard as he can with every accusation of treason and cowardice, while the Democrat tries harder and harder to prove to the Republican how reasonable and fair and nice he is by diluting everything he says with back-tracking concessions and apology.

Thus, even in the middle of a scandal which arises from the fact that the President has admitted that he believes he has an "exemption" to Congressional law and defiantly proclaims that he will continue to act contrary to it, the Republican McConnell aggressively accuses Democrats of helping Al Qaeda while the Democrat Schumer makes one apologetic statement after the next designed to prove how fair-minded he is.

The Democrats need to change this, and quick, if this scandal is going to have any impact. The media’s attention span is minuscule. Even the most significant scandals have very short life spans because the public gets bored and the media wants to keep them entertained. The NSA lawbreaking scandal is so substantial on its own that it has not just hung around, but has picked up strength, over three weeks now, which in the political-media landscape is an eternity. So far, this has happened despite the Democrats, not because of them.

But that’s not going to last forever, especially if Democrats remain so vague and tentative in articulating their position and the reasons why this matters. How this scandal gets defined right now is going to have long-lasting implications for whether anyone beyond political junkies cares about it. And if Democrats remain afraid to say that George Bush broke the law because he believes he has the right to do so, and that all options including impeachment must be used to prevent further defiance of the law, then this scandal will wither away, and this Executive law-breaking will endure. And it won’t be anyone’s fault other than the Democrats who lacked the courage and principle to do something about it.

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