April 1, 2006

How To Clear The Room (Democrat Style)

The New York Times notes that the call to censure President Bush for his approval of a program to conduct surveillance on an enemy in wartime without treating it as a law-enforcement project has made lots of headlines but won few converts, even among Bush's opposition in the Senate. David Kirkpatrick reports that Russ Feingold's push to officially scold Bush has Democrats oddly silent:

Although few Senate Democrats have embraced the censure proposal and almost no one expects the Senate to adopt it, the notion that Democrats may seek to punish Mr. Bush has become a rallying cause to partisans on both sides of the political divide. Republicans called the hearing to give the proposal a full airing as their party sought to use the threat of Democratic punishment of the president to rally their conservative base.

Five Republicans at the hearing took turns attacking the idea as a reckless stunt that could embolden terrorists. Just two Democrats showed up to defend it, arguing that Congress needed to rein in the White House's expansive view of presidential power. The Democrats' star witness was John W. Dean, the former counsel to President Richard M. Nixon who divulged many of the details in the Watergate scandal.

Senator Russell D. Feingold, the Wisconsin Democrat who proposed the censure motion and is considering a 2008 presidential run, argued that the Bush administration's insistence that it needed no Congressional approval for its wiretapping program implied that "we no longer have a constitutional system consisting of three co-equal branches of government; we have a monarchy."

"If we in the Congress don't stand up for ourselves and for the American people, we become complicit in the lawbreaking," Mr. Feingold said.

Here, I think, is the crux of the problem for the Democrats. First, in the hearing itself, five former FISA jurists have told the Judiciary Committee that Congress cannot strip the president of his powers granted by the Constitution to defend the nation in wartime, no matter how many laws they pass -- and that to the extent that FISA does so, it is unconstitutional. Conducting intelligence on a wartime enemy has always been part of any military response, including (and especially) their attempts to communicate to agents within the US. Both Truong and in re Sealed Case, discussed at length at Power Line and joined by liberal legal scholars such as Cass Sunstein, back the FISA judges that appeared this week.

Beyond that, the problem Feingold faces is that Congress had been briefed about the program since its inception. Leading Democrats on the relevant committees knew full well about this program and its implications starting in late 2001. None objected in any serious manner to the program's existence, tactics, or goals, and only mildly objected on occasion about its reach -- after which the NSA suspended it, retooled the parameters to meet the objections, and then restarted it. When Feingold talks about complicity, the Democrats understand what that means, and they're not keen to throw themselves on a political pyre just to help Feingold gain momentum for a presidential run in 2008.

These attacks on a program that has consistently won solid support from the American public do nothing but energize both parties' bases. That may help Feingold personally, who right now has made himself the darling of the MoveOn crowd, but it won't help moderate Democrats. Feingold has explicitly called them cowards, fueling the radicals in his party to attack them and press for primary opponents to knock them out of the general election in the fall. Meanwhile, a dispirited conservative base that had made a lot of noise about staying home in November to protest the lack of fiscal discipline and the paltry efforts made at securing the borders now finds itself back on the front lines, determined to thwart Democratic plans to impeach Bush after winning control of Congress after November. The GOP base will put aside many differences, even they key disputes over budgeting and borders, in order to ensure that stops right now.

Russ Feingold hasn't been paying attention, not to his caucus, not to the testimony presented in the hearing, and not to the majority of the American electorate. He may remain tone-deaf and in the grasp of the lunatic fringe, but his fellow caucus members seem to have a better sense of politics. Don't expect them to jump onto the pyre any time soon.

UPDATE: The LA Times notices another reason for all the echoes -- the room was mostly empty:

[T]he hearing also dramatized, in the form of a long row of empty chairs, the hesitance other Democrats have about the resolution. Besides Leahy and Feingold, the only other committee Democrat who attended was Sen. Herb Kohl of Wisconsin. And he left without delivering an opening statement or questioning any of the witnesses.

Democrats skipping the session included Sens. Dianne Feinstein of California, Edward M. Kennedy of Massachusetts and Joseph R. Biden Jr. of Delaware. Five of the panel's GOP members also were absent.

Feingold's resolution has been championed by an array of left-leaning blogs and the online liberal advocacy group MoveOn.org. But it has attracted only two co-sponsors — Sens. Tom Harkin (D-Iowa) and Barbara Boxer (D-Calif.).

Patrick Leahy did wind up endorsing Feingold's resolution, which brings the total on the commitee to ... two. And those two had better get used to loneliness, because when your best witness for censure comes from the Nixon Administration, you really have lost all sense of perspective. John Dean spent his time promoting his book by claiming that the NSA surveillance program was "worse than Watergate", a notion that even a Clinton appointee just couldn't let pass:

Disagreeing were Robert F. Turner, the associate director of the University of Virginia's Center for National Security Law; Lee Casey, another former Reagan administration attorney; and John Schmidt, an associate attorney general under President Clinton. They contended the spying was justified either by the congressional resolution authorizing Bush to use force against terrorists after Sept. 11 or by the president's inherent constitutional powers as commander in chief.

"He did not break the law, and there is no evidence that he has in any way misused the information collected," Casey said. "This is not Watergate."

But ... but ... that doesn't sell books ... or get people votes in the presidential primaries!


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