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March 15, 2006

Comments

I just called Senator Mikulski's office and asked why the Senator thought that President Clinton's actions were so much more serious than President Bush's that censure was warranted in the first case but not the second. "I couldn't answer that", said the staffer. I said that I would await an explanation of this point with interest.

Meanwhile, John Kerry is taking care of more important business.

A toast to Wayne Morse while wondering why Gruening mostly forgotten. May Finegold fare as well.

My gut tells me the Senators believe Bush is going to pull a NatSec rabbit out of his hat in late summer.

If you, a very rhetorical you, believe that a peace, dove, or anti-Iraq candidate can win a general or national election when faced with decent hawkish opposition, then give it a shot, with my approval and blessing. I would enjoy a more interesting politics. But the elite consensus in the MSM and Washington apparently so strongly disagrees that you may not even get a shot.

Already called Kohl, though I doubt anything's going to come of it.

Let me take a shot at this hilzoy. Clinton was a sexual predator and calculating liar that should have to report his address to local authorities and check in with his probation officer once a month. Bush is saving us from certain annihilation from Islamic extremists. Isn't that the answer most of you are getting?

Bush is saving us from certain annihilation

it's both amazing and pathetic that people think "extremists" are capable of annihilating the US. it's as if they think the country is so weak and frail that it couldn't stand up to a couple thousand thugs with rifles. talk about America-hating!

You know I would have at least a little admiration for the dem Senators if they would just take a bloody stand one way or the other instead of wimpering a flaccid "no comment"

If you favor it, say so. If not, say so. Then explain the resons behind your decision. This ain't f-ing rocket science. "I don't know much about it" or "I want to wait and see" is about the worst possible choice.

Harkin's co-sponsored, if you haven't heard.

"a couple of thousand thugs with rifles?" How about a couple of hundred scattered, semi-organized fugitives and terrorist wannabes with a few IEDs and a videocam (a reasonable approximation of Al-Qaeda's actual present capabilities)?

Cleek nails it: amazing and pathetic (and all at the same time).

Hilzoy, please do update to reflect Harkin's cosponsorship.

He was also the only Democrat quoted in Dana Milbank's dispiriting article who stood strong. It makes me proud to have worked for his election to the senate back in 1984.

Bush is saving us from certain annihilation from Islamic extremists.

Genius. Here the proposal is to censure the President based on heresay - we still, sadly, don't know if this was "monitoring" (probably legal) versus eavesdropping (probably illegal.)

So, we've got a censure proposal based on no evidence that it's advocates treat as fact, and opponents accept this and decide to resort to fearmongering.

Awesome!

Jonas Cord: Here the proposal is to censure the President based on hearsay - we still, sadly, don't know if this was "monitoring" (probably legal) versus eavesdropping (probably illegal.)

But we do know that Bush absolutely does not wish any investigation into the wiretapping to take place. Karl Rove treated the proposal for an investigation as a fullscale emergency (much more urgent and serious than a mere hurricane). So, to recap: Bush has done something he does not want investigated. Even his supporters acknowledge that what Bush has done could be illegal, even if they're unwilling to admit it was illegal - they're certain there's some kind of distinction that makes it not criminal to wiretap, or that there was wiretapping but it was probably legal wiretapping.

How Bush's supporters deal with the fact that Bush doesn't want them to know whether or not what Bush was doing was legal, but expects the entire country to have blind faith that it was legal without any supervision or judicial restraint, is unknown. Bush's version of the Fourth Amendment seems to be "Just trust me!"

If you're so certain that Bush's wiretapping is legal, why not campaign for a thorough investigation to prove to those pesky people who want Bush censured to show that Bush did nothing deserving of censure? Appoint a special prosecutor. If a special prosecutor was deserved for Whitewater, surely one is also deserved for this... a much more serious offense.

The (failed) censure of Clinton allowed a bunch of Democratic senators to pretend that they hadn't just finished playing at being OJ jurors during the impeachment trial. There's no similar incentive here--it's just a chance to be associated with a senator (now two senators, with Harkin piping up) who is clearly pandering to the crazies for '08. Censuring the President was a bad idea when the Whig-controlled Senate did it to Andrew Jackson over the Bank of The United States, it was a bad idea to try it in 1999, and it's a bad idea now.

Here the proposal is to censure the President based on heresay - we still, sadly, don't know if this was "monitoring" (probably legal) versus eavesdropping (probably illegal.)

I might've missed something, but didn't someone in the Bush Administration -- I want to say Gonzales, but it might've been someone else -- flat-out admit that the Administration broke the law? And hasn't this been corroborated in innumerable Justice Department memos? It's been in the context of declaring that the law (specifically FISA) was unconstitutional because of Article II conflicts, true, but I don't see there being any dispute whatsoever that the President broke the law -- by his own Administration's admission -- only that the law itself might've been ill-founded.

So, we've got a censure proposal based on no evidence that it's advocates treat as fact, and opponents accept this and decide to resort to fearmongering.

I'm not even sure it's fearmongering. Just plain fear.

I would appreciate it is BBM would respond. I, too, feel that the fear of errorists is exaggerated and that "certain annihilation" is so far beyond overstaement as to be a possible joke or self-parody. Why are you so afriad, BBM? We handled Hitler withut annihilation.
I'm proud of Harkin. My mon was his campaign office manager way back in the seventies. Nell, do you live in Iowa? Somehow I had you pegged as a New Englander.
I will call maria Cantwell and bollock her staffers this afternoon. Did Patty Murray betray us too?

Actually fear of errorists is probably justified. But terrorists are another story.

I might've missed something, but didn't someone in the Bush Administration -- I want to say Gonzales, but it might've been someone else -- flat-out admit that the Administration broke the law? And hasn't this been corroborated in innumerable Justice Department memos?

Anarch, you are right. In the real world things work that way. But just to show how far through the looking-glass we are, take a look at this:

Whether the NSA surveillance program conducts “electronic surveillance” under FISA isn’t a “fact.” It’s a legal question, as “electronic surveillance” is a statutory term. And we can’t be entirely sure that the program does conduct “electronic surveillance”: DOJ makes clear in footnote 5 of its 42-page defense of the program that its position may be tactical (to avoid revealing the factual details of the program).

Jesurgislac,

But we do know that Bush absolutely does not wish any investigation into the wiretapping to take place... So, to recap: Bush has done something he does not want investigated.

The fact that he does not want it investigated does not mean the program is illegal. If it was legal, would you expect any President to come out be like, "Please, yes, investigate this top-secret NSA program publicly."

Even his supporters acknowledge that what Bush has done could be illegal, even if they're unwilling to admit it was illegal - they're certain there's some kind of distinction that makes it not criminal to wiretap, or that there was wiretapping but it was probably legal wiretapping.

What I don't get is why this pick this completely conjectural and nebulous argument when the one I'm outlining is far better. It's probably the brand of Crack they smoke.

If you're so certain that Bush's wiretapping is legal, why not campaign for a thorough investigation to prove to those pesky people who want Bush censured to show that Bush did nothing deserving of censure?

I'm not certain it's legal! I'm not certain it's illegal, either! I don't know any facts yet!

And the fact that there aren't any facts to be had about super-duper-top-secret-black-budget-programs is not some horrible new Bush innovation. It's been like that since I was a kid, and inevitably, it became a fringe issue of enraged opponents of whoever was President at the time.

There probably hasn't been adequate oversight over the NSA since its inception. If Congress wants to do something about that, I'll get excited and call my congresspersons and whatnot. But this censuring thing is ridiculous.

What I don't get is why this pick this completely conjectural and nebulous argument when the one I'm outlining is far better.

Looks like they're the same to me, or very well could be the same. Still, I'd shy away from the use of "wiretap".

As was requested of JFK: Less profile, more courage, please.

Jonas Cord: The fact that he does not want it investigated does not mean the program is illegal. If it was legal, would you expect any President to come out be like, "Please, yes, investigate this top-secret NSA program publicly."

Ah. So, we should trust Bush isn't breaking the law, even though the administration admits to breaking the law, because there's no way a President who wasn't breaking the law would want his innocence established by a public investigation...

...sometimes, Republicans just confuse me.

sometimes, Republicans just confuse me

it's called "chaff"

Ah. So, we should trust Bush isn't breaking the law, even though the administration admits to breaking the law, because there's no way a President who wasn't breaking the law would want his innocence established by a public investigation...

Like I said, Bush did not invent the NSA's uncomfortable lack of oversight. Nor does the fact that he hasn't been open about a top-secret program prove wrongdoing.

Agh, my comment got half-eaten. Anyways, I just dont think that requiring Presidents to expose top-secret programs in order to prevent being considered guilty-until-proven-innocent makes any kind of sense. Rational Congressional oversight of the NSA and other completely dark programs does make sense to me.

Like I said, Bush did not invent the NSA's uncomfortable lack of oversight.

I see. So, when CNN claims Bush said he authorized warrantless wiretapping, they were falsely reporting? Wow, their CGI software is good - Bush looks just like the real thing!

Jonas: Anarch, you are right. In the real world things work that way. But just to show how far through the looking-glass we are, take a look at this:

Oh, I know that there are defenders of the program's legality. [Had forgotten Kerr's article, thanks for the re-link.] What perplexes me is that it'd be one thing if the Justice Department (or a similarly situated government institution) were making those arguments; it's another entirely when the AG has basically said, "Yeah, we broke the law, but we get to!" It reminds me a lot of Bush's campaign for war in Iraq, actually: a lot of people making very good points that were being completely ignored, or worse contradicted, by the Administration on whose behalf they were making them. I was never able to figure out that bizarre schism, how the left hand appeared to be blatantly ignoring what the right hand was doing while speaking on its behalf, and yet having everything somehow cohere into an admittedly schizophrenic whole.

[Which goes once again to my notion of the Bush-Administration-as-Rorschach-Test, about which enough has been said for the nonce.]

As Russ pointed out on Soledad O'Brien's show a few days ago, we certainly don't know everything about the case... but what we do know suffices to demonstrate the program's illegality. [Part of what we know, of course, being the AG's confession that it was illegal.] I tend to think censure votes are worth marginally more than a bucket of warm spit but at this point I'm not really sure what else can be done, Congress (via Pat Roberts) having abdicated its proper role.

M Scott Eiland: There's no similar incentive here--it's just a chance to be associated with a senator (now two senators, with Harkin piping up) who is clearly pandering to the crazies for '08.

It says everything that demanding accountability for admitted law-breaking is now considered "pandering to the crazies". Sic transit gloria mundi.

FDL has Feingold, Kerry, Boxer, Harkin, and Menendez in the "lion" catagory.

Jesurgislac,

I see. So, when CNN claims Bush said he authorized warrantless wiretapping, they were falsely reporting?

It wouldn't surprise me. A close reading of the transcript never specifically mentions warrantless wiretapping of American citizens.

Anarch,

What perplexes me is that it'd be one thing if the Justice Department (or a similarly situated government institution) were making those arguments; it's another entirely when the AG has basically said, "Yeah, we broke the law, but we get to!" It reminds me a lot of Bush's campaign for war in Iraq, actually: a lot of people making very good points that were being completely ignored, or worse contradicted, by the Administration on whose behalf they were making them.

You've hit the nail on the head. That's something I've wondered about the Administration from the beginning - I don't get it either.

As Russ pointed out on Soledad O'Brien's show a few days ago, we certainly don't know everything about the case... but what we do know suffices to demonstrate the program's illegality. [Part of what we know, of course, being the AG's confession that it was illegal.]

Well, okay.. but here's some more of Bushs statement, somewhat snipped:

The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President... The NSA's activities under this authorization are thoroughly reviewed by the Justice Department...

Seems to me you may have more grounds to censure the Attorney General than you do the President. Bushs vague speech seems to imply that it's all been reviewed and signed for legality. That being said, if the Attorney General reviewed a program, thought it to be illegal, and then approved it anyways... whoa!

Seems to me you may have more grounds to censure the Attorney General than you do the President. Bushs vague speech seems to imply that it's all been reviewed and signed for legality.

First, I'm pretty sure he's... massaging the truth rather carefully there, in that I doubt the Justice Department "thoroughly reviewed" those activities in any meaningful way.

Second, IIRC -- and anyone who actually remembers this precisely, please step in -- Gonzales' argument wasn't that the program was in accordance with the law, it was that FISA was unconstitutional by Article II concerns* and therefore it didn't matter that the NSA program violated it. That's one of the more tendentious readings of "legality" I've ever seen, and one which strikes me as plausibly censurable.

[But hey, I'm all for censuring/impeaching Gonzales too. I'm easy to please that way.]

All that said, I'm going to hold off for a bit to let others have a shot at this, especially those with better memories or more willingness to Google than I.

* That I remember, no-one in the Administration has made the argument that the President's actions were legal by Truong etc., but I freely confess I'm having a hell of a time keeping who said what straight.

A close reading of the transcript never specifically mentions warrantless wiretapping of American citizens.

Really? I thought the key paragraph was: I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Are you asserting that US citizens never have what "the government" thinks of as a "clear link to these terrorist networks"? Or are you just asserting that it's consistent with US law and the Constitution to assume that the government won't wiretap US citizens without a warrant but that the Fourth Amendment does not apply to foreigners within the US?

Seems to me you may have more grounds to censure the Attorney General than you do the President.

Didn't Bush appoint the Attorney General? Why doesn't Bush deserve censure for appointing a pro-torture AG who gives him bad legal advice?

"Why doesn't Bush deserve censure for appointing a pro-torture AG who gives him bad legal advice" without having subsequently fired him?

it's a bad idea now.

What's a good idea, Scott? How should the Congress deal with the serious possibility of Presidential lawbreaking? And, more specifically, what should the Democrats do when Administration toadies block any investigation or other action that might shed light on what's going on?

@Lily: Virginian, not a New Englander. It's an old-fashioned name, I can see how it would have those associations (though I can sense my mother spinning in her grave at the New England idea... !)

I worked in Iowa 1982-1986, some of that time based in Chicago. In 1984 I was the field staffer for a doomed Congressional candidate in Linn County (Cedar Rapids); the entire purpose of the campaign was to put a floor to the Dem vote to help Harkin. Worked! That victory and the Linn Co. sheriff's race were the bright spots that compensated (incompletely) for the Reagan re-election landslide.

Six hours later, there's at least one more official co-sponsor and three more Senators who've committed to support the censure resolution. So the time is ripe for an update of the main post. I realize real life might intervene.

Sorry, having a hard time seeing anything but the Durbin cosponsorship.

Harkin, I mean.

I say Durban,
You say Harkin,
I say Feingold,
You say Find goal ...

Let's call the whole thing off.

Actually, let's not. But you know, I'm in a really bad mood - I've been a New York voter for @25 years, and have I gotten anywhere calling Chuck Schumer's office? No, I have not. They have nothing, nada to say. Sort of like Senor Ugarte in "Casablanca."

Anarch, Jonas, etc.

Kerr is not claiming that the program is legal, he's saying that the issue is unlikely to be resolved on summary judgment. If there is a dispute of material fact (are FISA-implicating surveillances being conducted or not?) then summary judgment is inappropriate. Basically, it doesn't take a lot more than "No I didn't" to defeat summary judgment.

FWIW.

The Dems' pov.

Digby pooh-poohs the above. I've been finding him less insightful of late.

On proof, I see rilkefan's beaten me with the Digby link. I'd be interested why he thinks Digby isn't right on this. (feel free to ignore my paranoia)

Some various points seen surfing the net. One is that the censure motion was made after the impeachment, so in a sense, it is not so much hypocritical as being of a piece with past pandering. I'm not defending those listed above, just presenting a little more info.

I've also read that because Feingold went forward without consulting, other Dems are mad. Call me paranoid, but I think that one reason for this is that it has gotten to the point where one can't trust the consultants because they would have run off and leaked it.

Greenwald and Digby on this.

"(feel free to ignore my paranoia)"

Do you think I'm secretly Karl Rove?

I think he's claiming that there's an infinity of oxygen and coordination is unimportant. "[The port issue] is being reported with as much fanfare as it ever would have been" is question-begging.

"It's apparently true that Feingold didn't consult with the party. But considering the response I can sort of see his point."
seems both question-begging and kinda puerile to me. He assumes that Specter couldn't have been cornered in the current political environment. He assumes that 33% is the magic number that will split the Republicans unified on this issue. Basically he's coming back with a big no when he should be qualifying his position with a bit of the Drum take or finding better counterarguments.

Since there's no smiley, I'm not sure if I insulted you. I just meant that Feingold's desire to not consult might be because it would have been leaked is paranoia on my part.

I liked Digby's point that the port deal is dry tinder. I also don't like the idea of continuing to hammer on the port deal because of the racist overtones. Leave that to those on the R side who have imbibed the kool-aid. I don't know if there is a magic number and I don't see where Digby suggested there was. I'm a fan of Drum, but saying 'I'd vote for it, but I don't really support it' as he does makes me cringe. Greenwald is especially pointed on this.

I personally wish we had a censure motion on torture, even if 70% of the population was against it, and it says something that snooping on calls deserves a censure while legalizing torture deserves ???

Perhaps Feingold should have consulted with Reid (I don't know what consultation went on) But I do remember that Reid consulted with virtually no one when he shut down the Senate with the invocation of Rule 21. Yes, I know that Reid is the head, but given that Feingold is on both the Judiciary and Intelligence committees (ircc), he saw an opening and went for it. I'm enamoured of basketball metaphors because of March madness, so it's like he stole the ball and is going down on a fast break and the rest of the team is telling him to stop.

The left has never been good at coordinated action and when they do do it well, it tends to demand a sort of ideological purity. And given the current state of affairs, some people do need to be swallowing their misgivings, but clearly, most of the Senate dems are unable to do that.

Back to basketball, I think what is essential is the kind of approach that Rick Pitino called 'the mother-in-law defense' which was essentially a full court press of 'constant nagging and harassment'. But I lean towards the McManus thesis, so that may be expected.

As far as not telling them beforehand:

I think he's being a deliberate pain in the a*s, and I think he's completely justified in doing so. And I think he's justified based on their failures and abdication on these issues before his resolution, not after.

Anarch,

I doubt the Justice Department "thoroughly reviewed" those activities in any meaningful way.

Not to our satisfaction, Anarch, but I don't think they are likely to have avoided determining any legal precedents that might come into play - despite their bizarre ideologies.

Gonzales' argument wasn't that the program was in accordance with the law, it was that FISA was unconstitutional by Article II concerns* and therefore it didn't matter that the NSA program violated it.

Okay, fair enough. Again, according to the portion of the DOJ document cited by Orin Kerr, they explicitly state that all arguments they are making could potentially be bizarro-world ones that throw people off the scent of the actual program, given that it's top-secret and all that. This is an unacceptable situation, but one that none of the discourse, pro-Bush or anti-Bush has anything to say about right now.

Jesurgislac,

Are you asserting that US citizens never have what "the government" thinks of as a "clear link to these terrorist networks"?

I have no idea, Jes. But none of the speeches that I've seen go anywhere towards acertaining that fact either way.

Or are you just asserting that it's consistent with US law and the Constitution to assume that the government won't wiretap US citizens without a warrant but that the Fourth Amendment does not apply to foreigners within the US?

If those wiretaps were happening outside of the US, I think you might be in a bit of a Constitutional pickle. But I don't really know. Meanwhile, nothing Bush said necessarily indicates that what you're describing happened. I don't think, despite his all-to-frequent rhetorical idiocy, that this particular speech offers any insight into these issues. It was probably written to have that very effect.

Didn't Bush appoint the Attorney General? Why doesn't Bush deserve censure for appointing a pro-torture AG who gives him bad legal advice?

That would be new. I'm not saying it's a bad idea, but I can't think of when a President got censured based on the independent behavior of their appointees.

Pooh,

Kerr is not claiming that the program is legal, he's saying that the issue is unlikely to be resolved on summary judgment.

That's all fine and dandy, but as we don't know what the damn program is, it is beyond human capability to figure out under any interpretation of Constitutional law whether its legal or not. I'd like any Congressional activism to focus on that point, not censure acts that are completely conjectural.

Liberal Japonicus,

I've also read that because Feingold went forward without consulting, other Dems are mad. Call me paranoid, but I think that one reason for this is that it has gotten to the point where one can't trust the consultants because they would have run off and leaked it.

Perhaps. Given the drought of facts we're all operating in here, I worry that perhaps many Democrats are not unprincipled enough to censure this while knowing details of the program that make the argument against it moot.

I personally wish we had a censure motion on torture, even if 70% of the population was against it, and it says something that snooping on calls deserves a censure while legalizing torture deserves ???

Bingo. You could even avoid any semantic disagreements in the resolution by stating that the treatment of prisoners "was completely inappropriate and damaging to the reputation of the United States." Slam dunk, to continue unnecessary Basketball metaphors...

Also: I do think there was a very very real risk it would've leaked if he told the caucus generally, and that would've completely undercut it. You don't have to be especially paranoid to believe this.

If I were him, I probably would have told Reid & Durbin, maybe a few other people I really trusted, and no one else. I would have made it clear that I was informing them as a courtesy, not asking permission, and that if it were leaked I would think twice before repeating this courtesy in the future.

Of course, it's not impossible that he did that.

The specific reasons in the carpetbagger post I find utterly unconvincing. Apologies for the length here, but unless I quote them no one will know what I'm talking about (are you proud Gary?):

First, a lot of Dems were bothered by the fact that Feingold took the party off-message. The DP World controversy was still reverberating, and congressional Dems had hoped to keep the momentum going this week with a vote on the "Sail Only if Scanned (S.O.S.) Act," which requires more effective scanning techniques be implemented at our ports, and a bill that would expanding government scrutiny of foreign investments. Instead, both of these are getting less attention because of interest in Feingold's resolution.

As far as "off message" or "this is not the right time"--they've made clear that it will never be the right time on these issues, and that they will never become a part of the party's message. (Note that I see this as completely intertwined with the torture issue--a case I wish Feingold would make more clearly. It's the same unlimited executive power argument, and the same cowering by the Democrats.)

Second, there's a sense that Feingold helped bring Republicans together. As of last week, the GOP's fissures were showing and all the talk was about Republicans on the Hill exerting independence from the White House. Now, Feingold's resolution has pushed the GOP back together again and Republicans are back on the offensive. Some Dems think the censure resolution basically helped the GOP get off the ropes.

As far as dividing the Dems and bringing the Republicans together: it's the Dems choice to be divided. If the Dems were not so divided the Republicans would not be so unified. The U.S. Congress and the Washington press corps are as susceptible to peer pressure as any seventh grader.

Third, there was not even a hint of party strategy on this. The past couple of years, there's been an effort to try and have Dems coordinate more on major political and policy initiatives. Coordinating Dems is like herding cats, but there's been some progress of late. Feingold, however, decided to go his own way; he announced his resolution without even letting his colleagues know it was coming and with no real regard for what it would do for the party's short-term agenda. Some see this as a slap in the face — if Feingold wanted party support, they said, he should have worked within the party. Instead, Feingold took the lead, and no one followed.

Feingold has been trying and failing to get the party to address these issues for years. It won't ever happen unless there's a political price for not doing so.

Fourth, Dems saw that Bush was starting another series of Iraq speeches, and the party was ready to pivot from ports to the war. Roll Call noted today that Dems want to "play offense on Iraq." Yesterday, however, whenever a Dem senator tried to talk about the war, reporters just asked about Feingold.

See #1: if the President's plan to make Yet Another Round of Iraq speeches is reason to delay, what isn't? There will never, never, never be a right time.

And fifth, one Senate staffer in particular said if Feingold wanted to push warrantless searches again, there were (and are) effective alternatives to a censure resolution. The staffer told me:

"Rather than just rush to a vote, which would be stupid, we want to get Specter to hold a hearing on it in Judiciary where it has been referred. Imagine a hearing with a panel of experts discussing whether Bush's behavior deserves censure. Wouldn't that be much better as a first step then a rushed vote in which we lose and R's declare victory and say we were silly?"

This one doesn't even make sense to me. If they're talking about a judiciary hearing on Feingold's censure resolution, how exactly was that supposed to happen without Feingold introducing his censure resolution? And it's actually not enough just to introduce the resolution, you also have to make a big stink about it.

There's been an anti-rendition bill referred to the judiciary committee for about a year now. Number of hearings? A big fat zero. Number of cosponsors? Five. Feingold is one. Four of them signed on the first week. One of them, I'm honestly not sure would've signed on if I & a few others hadn't personally harassed one of his staffers about it last summer.

If they're talking about another NSA hearing in general--that was going to accomplish nothing. Yes, Graham and Specter might have criticized the President a few times. Whoop di do. It would have gotten little to no press coverage, had no effect on public opinion, and changed nothing at all.

I've been watching this movie for years now. Something has to change.

Given the drought of facts we're all operating in here, I worry that perhaps many Democrats are not unprincipled enough to censure this while knowing details of the program that make the argument against it moot.

Not meaning to be snarky, but I think that's a fair point, but I'm not really sure what you are saying. It seems to me that the litotes of 'not unprincipled enough to censure it' kinda suggests that Dems should reject the censure resolution on some sort of principle and I'm left wondering what exactly that principle would be.

And to Katherine, amen.

LJ,

It seems to me that the litotes of 'not unprincipled enough to censure it' kinda suggests that Dems should reject the censure resolution on some sort of principle and I'm left wondering what exactly that principle would be.

The principles of either:

A. Not knowing what the program is, therefore unable to censure anyone about it.
B. Knowing what the program is, and it is not illegal, therefore unable to honestly censure anyone about it.

That's all I'm saying. There is a "C" of course: Knows what the program is, it is illegal. But my cursory understanding of the NSA and the way it operates seems to indicate that this is impossible - which is insane.

Love it when you post, Katherine!

This, the third weak reason from reluctant Dems, really made my lip curl: Coordinating Dems is like herding cats, but there's been some progress of late.

Such as the brilliantly coordinated campaign to block Alito?

The most horrifying part is to see how many Dems don't really acknowledge that Bush clearly broke the law, and don't seem to see the bald assertion of unchecked power in the administration's approach to the spying and torture programs.

Harry Reid should herd his caucus into a room for a showing of Al Gore's speech at Constitution Hall. Many of the Senators probably missed it, busy with MLK Day observances in their own states.

Thanks, Jonas, and no snark was intended. My problem is that the first principle is undercut if the administration refuses to give information (and given that they are trying to conceal the legal justification for why they are doing this strongly suggests that if the admin has it's way, we will never have enough information) and the second one presumes that Feingold has become the epitome of hypocrisy. If this were the case, I think we would be able to point to a score of cases where Feingold has engaged in similar actions previously and I don't think we can. Feingold is reckoned to be a Boy Scout (warning, the link is firmly on the left), so, given the evidence we have, neither of those principles have much support, imho.

lj, no offense taken - your referencing seemed odd, that's all.

Katherine: "Also: I do think there was a very very real risk it would've leaked if he told the caucus generally, and that would've completely undercut it."

Why the undercutting? Why not call his fellow senators Saturday evening and say, "I'm going for it tomorrow, hope you'll consider supporting me, I've called X and Y and Z so far and they're all on board."


Nell: "Such as the brilliantly coordinated campaign to block Alito?"

This seems like all-or-nothing-at-all-ism to me.


Note that McCain is often reckoned to be a Boy Scout...

"This one doesn't even make sense to me. If they're talking about a judiciary hearing on Feingold's censure resolution"

No, they were I think clearly talking about the issue - gathering evidence - not the sentence.

LJ,

My problem is that the first principle is undercut if the administration refuses to give information (and given that they are trying to conceal the legal justification for why they are doing this strongly suggests that if the admin has it's way, we will never have enough information)

You are correct - the Administrations position does guarantee a complete lack of information. Meanwhile, I sadly have to concede that it has been generally held that the most secret programs of the NSA are too secret to divulge to Congress - and has been this way since I was in High School and the first Bush was in office. I find that unacceptable - as well as the completely dark programs that the Military operates - yet I'm not seeing anyway out, either through precedent or through proposed action by Congresspersons.

This is a complete system failure. No one is interested- in any Party, or in any ideology, nor in any branch of Government - in addressing the completely competiting interests of government secrecy versus public accountability. Your average person, I'm guessing, assumes that public accountability prevails - despite the fact that no mechanism is described either in law or in the Constitution that resolves this particular mess. I want something done about that, and neither this preposterous campaign for censure nor the mindless defense of the administration gets us any closer to that.

...and the second one presumes that Feingold has become the epitome of hypocrisy. If this were the case, I think we would be able to point to a score of cases where Feingold has engaged in similar actions previously and I don't think we can. Feingold is reckoned to be a Boy Scout...

I actually hadn't thought about this enough to cast any suspicions towards Feingold. His vote on the Patriot Act had the effect of proving that he is a sincere idealist to me. I just feel that the more Democrats sign up, the more likely they are to fall in my categories A or B. Feingold, in my rather emotional and completely intellectually-indefensible judgement, would I guess be a new category we'll call "D."

Jonas,

Maybe the defense Kerr notes, the DOJ's footnote that their defense of the program might be a bizarro-world story, isn't addressed much because it is an insipid plea to make to a court? IANAL, so I could certainly be wrong, but "I swear to tell a story, a plausible story, and nothing but a plausible story" doesn't strike me as safe bet for winning favorable judicial treatment. Could a lawyer please disabuse me of my naivety if this is incorrect?

Congress (not the Constitution) created the NSA; Congress could defund the NSA tomorrow. They won't, shouldn't, and don't have any desire to. That they could though is somewhat... problematic ... for the administration's argument that Congress in constitutionally incapable of exercising oversight of the NSA's activities.

Gonzales' written response to additional questions submitted during his unsworn Senate Intelligence Committee hearing took the cake though. He "clarified" that all of his statements at the hearing should only be taken as attributable to the Terrorist Surveilance Program - including, by all appearances, his "this is the only program" response to a question from Feingold. Nothing you (the Congress) need to see here. Move along.

Response from Roberts and far too much of the Congress: "Okay, Boss". In Frist's case, "SIR Yes SIR, my Commander-in-Chief, SIR! Would you like us to criminalize any further discussion, SIR?"

Words fail me.

Rilkefan,

The reluctant Dems would have some kind of point about how wrong it was for Feingold to act alone if there had been any effective coordination on any recent battle that counted. There has not been. Alito was the most grievous and long-term-damage-causing of these. It was also the one that everyone in the party had seen coming since election night 2004.

We are in a something-or-nothing situation. If Congress will not stand up to an unpopular, corrupt executive that claims the right to ignore statutes and violate the bill of rights, free of oversight, then we are in a dictatorship. Some Republicans made noises as if to stand up to the executive. Yet when it came down to it, they folded as always before.

People across the country know it's wrong. More people than not, in red states and blue, understand that the president is breaking the law. And they finally also understand that he's incompetent and untrustworthy, so they're not willing to accept his assertion that he has all the power and no one can check him.

But who will check him? That would pretty much have to be the Congress, yes? What will more reassure voters that their representatives will supervise and check this executive's feckless, irresponsible ways than calling him his admitted violation of our freedoms and the Constitution? It's not the kind of thing you can let go by, without making the people feel that nothing stands between them and the whim of an idiot king. When you're useless, they're unlikely to see the point of trading in Rep. Useless for you...

I told my mother a month ago "Feingold is the boy scout that McCain plays on TV."

Rilkefan: I thought I was clear on this point but maybe not.

I think he deliberately made sure that there was a political risk in not supporting him. If all of the political cost is on the side of speaking up on these issues, the Democrats never, never, never will.

We all get when it's this applied outside the party: if you have to lose, lose in a way that gets people on your side. I think Feingold wanted the Dems to do that with the NSA issue--but if he couldn't, at worst he was going to do it within the party: if he had to lose, he was going to lose in a way that got voters on his side.

You could see it is a cynical ploy for 2008 support. (I did see it that way when Kerry did it on the Alito filibuster.) But you could see it as a desperate attempt to get the Democrats to do something about this issue.

As someone who's desparate to see them do something about the closely related torture issue, who has been waiting for that for years, who has about given up on it ever happening--the Democrats need to address these things. And as long as there's no risk to them in not doing so, they never will. It's very, very easy for me to understand why Feingold thought this was worth putting his colleagues on the spot. It's very very hard not to be on side, if that's his motivation.

And I am convinced that it is. Feingold had been obsessing about civil liberties and the rule of law for years before I even read about the Arar case. And he's the sort who would rather be in the right and lose than be in the wrong and win. (I'm the same way--and yes, I realize that it's a quality that can make one insufferable, but we could use more of it in D.C.) Do I need to go into all the specific examples of this from Feingold's career?

CMatt,

Maybe the defense Kerr notes, the DOJ's footnote that their defense of the program might be a bizarro-world story, isn't addressed much because it is an insipid plea to make to a court? IANAL, so I could certainly be wrong, but "I swear to tell a story, a plausible story, and nothing but a plausible story" doesn't strike me as safe bet for winning favorable judicial treatment.

IANAL either, so don't worry - nothing I'm saying has any air of real authority. It's my understanding that this bizarro-world argument is merely stating that the arguments that they are presenting are not necessarily indicative of the realities of the program. If the ACLU says, rightly, "You can't wiretap citizens without a warrant!" and the DOJ responds, "Yes we can," that does not mean that they did - as per Jes' formulation. The footnote is just making that clear.

Congress (not the Constitution) created the NSA; Congress could defund the NSA tomorrow. They won't, shouldn't, and don't have any desire to.

They won't, I'm not so sure that they shouldn't threaten to do so. Everyone here is really pissed. Yet there is no way for Congress to have oversight - as in knowing what is being done - of these programs. I don't think that can be written off. The public seems to think that there is more transparency than there is - and I think that the Government needs to meet that expectation. This dilemma was around way before Bush and will likely persist after if these ridiculous kabuki dances continue instead of meaningful debate on the matter.

Gonzales' written response to additional questions submitted during his unsworn Senate Intelligence Committee hearing took the cake though. He "clarified" that all of his statements at the hearing should only be taken as attributable to the Terrorist Surveilance Program - including, by all appearances, his "this is the only program" response to a question from Feingold. Nothing you (the Congress) need to see here. Move along.

How on earth is he supposed to answer questions in a public hearing about classified programs if they are supposed to stay classified? That seems silly, I know. But until the big question is answered of how government secrecy is handled by the checks and balances of the various branches of government, this is all pointless.

Dear Jonas,
Thanks for hanging with us. I think that some of the disagreements might be fundamental disagreements of outlook and so not amenable to being changed (not just you, but me as well, just to be clear)

But your point about the NSA needing to maintain the kind of secrecy that was needed, say, during the Cold War is one that doesn't ring true for me because it seems to me that we would be stronger if there were more openness. What secrecy and compartmentalization of intelligence does is it prevents people from putting the big picture together. Now, I'm not advocating that we throw open the doors and reveal everything that we do. But the current state of NSA intelligence strikes me as the exact antithesis of the openess that should be our strength. I cannot believe that there is a silver bullet solution within the NSA towards the problems of fundamentalists and terrorists and I don't think there will be. Part of the Cold War dividend should have been a more open society, but what the administration has done is take us to a more closed, a more secretive and ultimately a more frightened society.

I agree that much of this argument is absent real data, and more information needs to be forthcoming. But if that is the case, that is the fault of one side rather than of the system and if that side can't see the problem, they have to be made aware of it. Thus censure is not a grandstanding luxury, but an absolute necessity. If someone like Feingold, who, like Katherine, I think of as a straight shooter (and I have to believe that if there were some dirt to dish on Feingold, it would have turned up), feels that there is a problem, I'm thinking that there is one.

Jonas,

The "Yes we can!" response argues the law. My take was that the footnote intended to respond to a question about the facts of the case with, "Here's a story about what could have happened".

How was Gonzales supposed to respond? Be clear from the start of the hearing that he'll only answer questions about The Program. Then something like, "If you want responses on topics other than The Program, even a yes or no, we'll have to move to closed session." That's what he did with anything that could remotely be construed as operational details of The Program in the hearing. The point of giving the "no other programs" answer and then "clarifying" it weeks later was, simply, to mislead.

I sympathize with your concerns about secrecy even five years ago. But this is new, not just a slight difference in degree. Oversight by the congressional intelligence committees and secret FISA courts is sufficient for me. I don't need to know, I just need to know that people outside of the executive branch exercise oversight. This was the case, to a far higher degree, before this administration. It is not now, and this administration is committed to ensuring that it won't be again.

This window is closing. If Congress abdicates completely, do you have any faith in a judicial remedy? I don't. If they can't register a complaint now - a placeholder, at the barest minimum - things will have to get a whole lot worse before there is any chance of clawing back even to the old status quo.

At this point, a justifiable but insufficient action is still far preferable to inaction. Particularly when it doesn't preclude action later. And especially when - I'm arguing - inaction now will preclude actions later.

I don't get it - either Feingold furthered his cause, or he didn't, or it's unclear; and there's controversy about whether he did. Saying you've been doing X and not winning, doing Y is therefore better isn't a sensible argument.

It's like the Nader in 2000 question - sometimes people think they need to put their own side at political risk. Sometimes it's a good idea, sometimes it's an awful idea. Springing a major strategic shift on your colleagues seems like an all-your-eggs-in-one-basket kind of plan, and one of questionable wisdom to me - but I don't claim to have a fine political sense; I just think there's a counterargument to I'm-doing-this-my-way-hope-you-follow and it ought to be considered dispassionately.

Armando says, Don't attack the Dems.

But rilkefan, the Nader question was a 4 year one (and the way he toyed with running again rather than join the ABB folks, makes it even clear that Nader was no Feingold) and it's truly questionable whether waiting on this would be a good thing. My cynical sense is that if the idea is to wait on censure to a point in time closer to the election, you would just see the Republicans utilize a wide range of parliamentary tactics to stall until after the 2006 elections. Perhaps this might be a better thing because the presidency is the seat of all power, but that is a lot more cynical and would open the Dems up to precisely the kind of criticism that Jonas raises.

I realize I'm flirting with a Godwin variation, but what goes thru my mind is the title of Primo Levi's book "If not now, when?"

On proof, I see the link to Armando. What is interesting is that he agrees with Digby, but basically suggests holding our tongues. Perhaps that is right, but it doesn't seem like the right(as in correct) thing, especially since Right Blogistan catapulted to prominence (imo) on a few vehicles of outrage mongering and this looks like something similar. Is it correct? I think so, and on that basis, if we can't get Dem senators to be convinced by this, they we have no chance at all.

Don't understand the point re Nader.

I take it the Dems would say, We're not waiting on censure, we're approaching it by cornering Specter and establishing evidence, we're pushing the ports deal to wedge the Rs and hurt Bush even more, we're trying to present a unified organized front, we're trying to let the Rs disintegrate and fight each other for the succession, but Feingold would rather grandstand.

Maybe the environment was suitable for R outrage mongering; maybe it's not suitable for outrage mongering on our side - or maybe this isn't the best or even a good vehicle.

An answer to Hillel's question might be, "When time is ripe."

I guess it's just to suggest that what Feingold is doing is akin to what Nader did is to draw a rather unfair equivalence. And when you say "we're trying to let the Rs disintegrate and fight each other for the succession", I can't help but think of the Ed Helms TDS piece that is up at crooksandliars.com where, in response to a Dem strategist saying something similar, Ed Helms replies

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

But again, this may be just a difference in temperament and/or outlook. I do have a hard time imagining Republicans having these kinds of questions when one of theirs leaps out, but then, I have a hard time imagining any of them taking the initiative without first getting the approval of the party.

I do think that what everntually gets agreed to is going to be a harbinger of how the 2006 elections are approached and if other Dems are not going to cover Feingold's back, there is scant chance of making any progress.

Armando's lecturing Democrats about the evils of going ballistic on their Senators for refusing to fight? What's next--George Foreman lecturing the American people on the evils of eating too many cheeseburgers?

Mr. Eiland,

Thank you for your substantive comments in this thread. Can I ask for a clarification on one of them?

...allowed a bunch of Democratic senators to pretend that they hadn't just finished playing at being OJ jurors during the impeachment trial.
What do you see as the similarities between senators (or just Dem senators) in the impeachment trial and OJ jurors?

Considering that all of the Democratic senators except Feingold voted in favor of a motion that said "we don't want to bother with this impeachment trial," I'd think the parallel would be obvious, CMatt--except that it's a little hard on the OJ jurors, since they at least took four hours of deliberations before saying "we're not interested in the evidence."

Drum's about where I am. Well, v.v.

though I like Quiddity too.

I knew if I sat on my ass long enough, someone else would do the research for me :)

Via Glenn Greenwald, here's Gonzales on the subject of wire-tapping/data-mining:

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.

I forgot, incidentally, that the other leg of the Bush Administration's argument was that the AUMF was sufficient authorization, in conjunction with Article II, to warrant whatever wiretaps/datamining they deemed necessary -- in particular, randomly WT/DM American citizens with no connection to terrorists -- despite also believing that this justification wouldn't fly in either Congress or the FISA court. So like I said, there may be colorable arguments as to why the NSA program was legal, but the Bush Administration sure as hell isn't making them.

hilzoy: I said that I would await an explanation of this point with interest.

I'm likely going to do that with Kohl, so I'm curious: what response did you receive, if any?

So like I said, there may be colorable arguments as to why the NSA program was legal, but the Bush Administration sure as hell isn't making them.

Yeah, that's got me mystified as well. I say that without knowing exactly what you mean by "colorable", though. Me, I'd think that the definition of "electronic surveillance" in the FISA statute itself provides ample maneuvering room.

But IANAL.

I think the point is you've got a bunch of dots, so you connect them, and then you get some crayons and fill in the shape they make.

Anarch: no response at all. As expected.

Slart:

For future reference, 'colorable' is lawyerese for an argument that passes the giggle test. The argument may not be right, but it's respectable enough that you can make it without snickering.

See, I thought maybe he was going here.

Any analysis that acts as if only Feingold controls whether this hurts or helps the Dems is missing at least half the point. What if it hurts the Dems if no one gets behind him, and helps them if they do?

I also flatly reject the idea that anything that increases the chances of Democrats taking Congress is worth doing and anything that hurts the chances is not worth doing. We don't actually know what will hurt or harm their chances and we're terrible at guessing. I mean, electability has been the Democrats' only pole star for how long? And how many of those elections have we won?
It may be that standing for nothing hurts their chances--in fact I am totally convinced of that. But I could be wrong too.

More to the point, though: even if something does harm their chances in the midterms, it might harm their chances a tiny amount, and get you a much better policy outcome. Something that helps their chances a tiny amount might get you a much worse policy outcome. And the effect of their actions on policy are much easier to predict than the effect of their actions on election.

If there was one vote where the Democrats had to sell out their principles to guarantee control over Congress, then yes, it would probably be worth it. But instead we act like every vote will do that, and then we lose anyway.

Just for reference, part of the chip on my shoulder about the Feingold stuff--in addition to the obvious accumulated bitterness from Iraq, the torture issues, etc.--comes from reading this delightful story about my Illinois Congressman, who is also the head of the D.C.C.C.

Slarti: It's true you have charm, but I find myself strangely unattracted to you...

Nuts. I tried to work "glueball" in there, but it just didn't stick.

And to LizardBreath and rilkefan: I'm sure the origin of "colorable" is utterly banal, but I've always been amused by imagining that it came about much as rilkefan suggested. I dunno, there's just something about John Jay learning to color between the Articles that tickles me.

Just called Senator Kohl and asked the same question that hilzoy did. Apparently, I'm going to get a letter explaining this! How exciting!

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