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March 13, 2006


so what's the take-home lesson from all this, then? "never send an arlen to do a graham's work"? or what?

FDL comment from a creditor rights attorney who really understands constitutional law: "Bull Arlen. The ENUMERATED, SPECIFIED, protections of citizens spelled out in the FOURTH AMENDMENT absolutely do "trump" any unenumerated, unspecified warpowers held by a President while the nation is NOT in a declared state of war.
Got your answer?
Vote for the Censure.
Mary | 03.13.06 - 2:12 pm |"


For Fristie? Bring wavering Republicans back in the camp no matter what it takes, humiliation if need be.

For PA voters? Don't give the old man another term, not that I expect him to try.

The Democrats better not drop the ball on this one. It really is a dealbreaker for the base, and when I say base I mean me.

At the end of the day, though, I suspect this resolution will never come up for an actual vote, any more than Murtha's did.

Well, I kind of figure it will work the way the Patriot act did. At first everyone will say Feingold is nuts. But then as time passes, they will all wish they voted as Feingold did.

I just hope some Dems figure that out.

It's an empty victory for Feingold, imo. Very few Americans are following this story with any interest, and it resonates very little with the voting public. None of the people I have talked with today have even mentioned it. A sizeable number of Americans have no idea about how our intelligence services are set up and how they operate, and know even less about the FISA court. Most are just glad they are on the job and protecting us from the bad guys. So, Feingold may have twisted Spector into knots, and made some points with his base, but I'll bet he had little impact across America. In the end, nothing will change, and the only real result of the Feingold move will be that the focus was taken off of the president's mishandling of the Dubai ports deal (the one issue where Democrats and Republicans and 70%-80% of the public were united against the president and considered him weak on national security), the Abramoff scandal, and other important issues, such as the pending Thursday budget vote in the Senate which will allow drilling in the Arctic National Wildlife Preserve if passed (progressive bloggers spent all day today sending emails about the ultimately meaningless censure move and didn't even mention the Arctic threat). Okay, okay, I realize that the president probably broke the law with his NSA program, but this censure will never pass and so it won't matter. If anything, the president will claim that he has been vindicated by the Congress because the censure will have been voted down, and he will further claim that whatever he has been doing has been to protect us from harm, and many people accept that explanation from him. So, I'm not happy with Feingold and his grandstanding, because I think that is all this was, and it hurt Democratic efforts to make the most from Bush's weakness on other issues, such as the Dubai ports deal. Now, that is an issue where we could have gotten a censure passed because Republicans would have had to have voted with us or lose face with their voters back home, and I think we could have gotten enough of them to have a majority on censure. Too bad that didn't happen, and another opportunity has been missed by lack of strategic planning by the Democratic leadership. Feingold had a good idea as far as method, he just had the wrong issue and thus fired a blank when all is said and done!

What technically is "censure"? If it were to pass, what would happen?

MSNBC poll:
What do you think of Sen. Feingold's proposal to censure Pres. Bush? * 25612 responses
Political grandstanding
A way to hold him accountable

A censure is just that. "You did a bad thing." No actual effects, but it's obviously not something that happens every day, and a vote on censure would make big news regarding an issue that the public has mostly lost track of.

I don't particularly agree with the idea that we should let the president's lawbreaking pass by with no consequences, because the public doesn't care enough and there are better political issues to make hay on. That's Feingold's quirky appeal in a nutshell; he focuses on the principle of the thing rather than the question of how it will play politically. Other Democrats are paralyzed by political calculation, for some reason assuming that when Dick Cheney and Karl Rove say this will hurt the Democrats that they must be giving good advice.

Talk to me again when Feingold has his censure motion passed by the Senate. Until then, it's just grandstanding for 2008 imo.

Roosevelt Democrat is neither.

Sorry, Davis, the troll charge won't work. I'm a Democrat for 46 years and have paid my dues over and over again. I'm just tired of empty gestures when we could be doing some real damage to Republicans if we had a winning strategy and some Democratic unity behind that strategy. Instead, we have everyone going off on their own with no unity and little strategy. I'm tired of seeing Democrat after Democrat in the Congress throw crap against the Bush wall in hopes that some of it will stick. That's what this censure move on NSA is, crap against the wall. Explain to me how it can get passed. Either it will never get to a vote, or it will be defeated. The latter is as good as an acquittal for the president. I wish Feingold would withdraw his bill and let the Democrats go back to the drawing board. My preference would be for a censure motion on the mishandling of the Dubai ports deal. We have the public with us on that issue and thus we could get enough Republicans to pass a censure motion, or make the Republicans in the Senate look like they were selkling us out on national security if they would not vote for censure. The public already feels that Bush put national security in danger by supporting the deal, so the president can't use national security to explain his mishandling of the Dubai ports deal. Unfortunately, Bush can use national security to defend himself against censure on the NSA matter, since many in the public would rather have a little illegal wiretapping as long as it keeps us safe, so they will wink at the president fudging things with the FISA court requirements. Feingold's censure plan is focusing on the wrong issue unless this is really just all about making Feingold look good with his base, because it has little chance of passing, and thus little chance of changing anything. As a Democrat, I'm tired of useless parliamentary moves and moral victories. I'm ready for a win!

And a censure motion on the port deal, which is over and done with, is something other than a useless parliamentary move?

Everyone already knows Bush screwed up the port deal. There is no principle in this desire to score a "win," nor is there any political gain to be had by piling on further.

A defeat for Feingold's resolution along party lines would be a huge political win for the Democrats, in this election year when (1) the prevailing belief is that the Democrats are gutless wimps who won't take a stand, and (2) Republicans are trying like hell to distance themselves from the President.

Taking the latter point into consideration, winning a censure motion with bipartisan support would be a massive blunder. It would make Bush look bad, sure, and it would also give every endangered Republican a free chance to distance himself from an unpopular president. The race this fall is in the House and Senate, and if Republicans keep their seats by giving the appearance of being principled and independent, that's a loss, even if Bush comes through it as the lamest of lame ducks.

A majority vote on a Dubai censure, with a few dozen Republicans joining with all Democrats to form a bare majority (which is highly probable), together with the rest of the Republicans voting against the censure and thus voting against their voters, that is a big win for Democrats. We could have had that one. Now we will have a vote where censure is defeated in committee or in the Senate and the president can once again claim "victory" over a partisan Democratic attack while he is "bravely protecting the nation from terrorists." Once again we will be on the wrong side of the national security issue with a sizeable sector of the electorate. I don't see how that is a win for our prospects in the 2006 elections later this year.


I don't think the censure motion will pass.

But I also think it will become useful come November, when a lot of Republicans are wanting to prove their independence from Bush.

For the near term, since they're not going to get anything passed anyway, it makes sense for the GOP to distance themselves from Bush. But things like the port deal are just kabuki--they allow Bush an out from a totally unpopular decision.

This censure really forces them to prove their distance from Bush. And they won't be able to do that.

Done right, this could be useful as votes on the Iraq war resolution.

Someone has to be the first person to say that the emperor has no clothes. That it might not be the blow that finally topples the house of cards doesn't bother me. I think Russ is performing a necessary step, and doing a valiant job of it. The Wurlitzer has sounded wheezy and late in response. And I believe the public's impression will not be one of grandstanding, but of truth-telling.

Finally, if there is a happy covergence of Russ Feingold's message and his 2008 run for the white house, so what? He's shown guts all along (if his Patriot Act vote wasn't gutsy, I don't know what guts is). He's earned this moment.

The logical fallacy here seems to lie in assuming the November elections are "Republicans vs. Democrats," or maybe "Bush vs. Democrats." In fact, the elections will be Republican individual vs. Democratic individual. And if we let the endangered Republican individuals distance themselves from Bush by voting to censure him on the port deal, we help their reelection prospects.

Bush is unpopular for the foreseeable future, unless he captures bin Laden with his bare hands. The idea that a party-line vote on Feingold's motion makes Bush look like a strong-terrorist fighter and the Dems look weak just because they lost is flat wrong. The Dems look bold for actually taking a stand (for once) and it draws renewed public attention to the presidential lawbreaking.

The real danger, of course, is that Feingold will be hung out to dry by the majority of the Dems. That's the way it goes, I guess, but if the Dems are going to be gutless it can't be helped. Feingold is doing this out of principle, just as he was the lone vote against the Patriot Act on principle, and so the argument that he failed to make the proper political calculations is really a non sequitur.

Well, I remember when Democrats used to win elections and pass effective legislation in Congress, so I guess I'm coming from a different age. I'm not yet ready to give in and applaud moral victories as victories, not when real victories are possible.


I'm not arguing this is nothing more than a moral victory.

The Dems don't have a majority ... anywhere. Which means they need to make the GOP lack of legislation an issue--they can't pass legislation (not even Barney Frank, who is as good as anyone at being in the minority).

So they need to find a way to prove the GOP has abdicated their responsibilities. I think this censure motion might do that.

The Censure motion is a potentially powerful tool. It goes to committee, where GOP will try to bury it and Dem's will try to get a hearing.

If it gets a hearing -- with dueling constitutional experts -- it'll be a dramatic television moment, and an educational one.

If hearings are delayed or denied, Senate Dem's keep working the "stonewalling" angle against Senate Republicans (whose confidence is waning anyway), and peeling off individual habitually Republican voters underneath them. Parts of the Republican base are every bit as paranoid as we are when it comes to government overreach.

I think a Dubai ports censure motion would pick up enough Republican votes, when combined with all Democratic votes, to produce the majority needed to pass the censure. With 70%-80% of the public against Bush on this issue, a few Republicans senators would defect, not in great numbers but enough to pass it. The 2006 election will be a referendum on Bush. A censure would help embarrass and weaken him further, and every Democrat could force his Republican opponent to defend Bush in the runup to the 2006 elections, and when they did they could bring up the Dubai issue and make them back off. A big win now for Democrats would give us momentum, and we would look strong on defending the nation. A defeat of the Feingold censure now will allow those Republicans to claim Bush was acquitted of any NSA wrongdoing. I just hate to see opportunitoes wasted. This current group of Democrats would rather do parliamentary maneuvering than engage in a street fight, and that's why we are in the minority. I'm just afraid everyone is getting used to it. I won't say any more on the matter, though. I can see no one here understands what I'm trying to say and I can see I'm making people uncomfortable by continuing. :)


Thanks for weighing in. Not sure if you saw Specter trying to make a case for the resolution to be recommended to the Judiciary--and not the Rules--committee? He admitted his rationale was as lame as they come (it finally came down to his wish to debate Feingold). But in any case, I can imagine Frist would rather have the eunuch Specter oversee this than Trent Lott (even though Frist is in Rules)oversee it. BUt maybe I'm misreading that?

I'll repeat what's already been said: Feingold's censure motion might be quixotic, it might be a dramatic gesture, but it's damned well time - no, it's past time - the Democrats in the Senate did something other than sit around like stunned quail waiting to get blasted. They have not been able to defy the GOP majority on anything; even Reid's shut-down of the Senate didn't get the Phase II investigation on track (remember that?).

RD, your nostalgic memories of Democrats passing legislation date from the era when there were Democratic majorities in both Houses of Congress. The only way those days will ever come again is when the Dems again take control; and it can't hurt our prospects of doing so to show Americans we're willing to stand up and fight, even if the odds are stacked against us.

It also can't hurt to force the GOP to do exactly what the GOP is doing: faced with yet another example of Bush Admin malfeasance, twisting and turning the law in order to protect him. Not just killing investigations in committee, not just letting Bush' misdeeds fade into yesterday's news, but forcing the GOP to come out and say "We're letting Bush break the law. We're even making it easier for him to do so."

When Bush's JAR is 30% or under in November, and the GOP candidates for House and Senate are trying to distance themselves from him, that's something Democratic candidates can remind voters about.

Roosevelt Democrat, no offense, but you're remembering a completely different world, a world prior to civil rights legislation. exactly what democratic victories of the sort you seem to have in mind do you remember since 1967? in addition, we don't live in a parlimentary system. endless blather about the democrats doing this and that and not being organized is willfully ignorant of the norms of american politics: the fact is, what's unique in american political history is the monolithic control of the republican party over its congressional representatives, and even that is beginning to fracture as it inevitably, in a non-parliamentary system, must. meanwhile, the idea that censure of bush on the dubai ports deal would do anything is, quite frankly, silly.

what's important about what feingold is doing is that it puts emphasis where it belongs: on presidential lawlessness. more democrats should have the guts to point that out: otherwise, what's a congress for?

I won't say any more on the matter, though. I can see no one here understands what I'm trying to say and I can see I'm making people uncomfortable by continuing.

Irked. Exasperated. But not uncomfortable. I always love the argument that, because someone disagrees, s/he obviously doesn't comprehend.

Your "strategy" is flawed for the very reason that Steve lays out. A Dubai censure, if it passed - and there's no guarantee on that - gives Republicans who vote for it a chance to improve their chances come November. Who do you think those Republicans might be? The ones in vulnerable districts, maybe?

One way to make the issue of domestic spying resonate with people is to do what RonK notes: give us a television moment, a moment in which to educate Americans - including assisting those like you who still think "the president probably broke the law" instead of thinking he definitely broke the law.

Reading between the lines, perhaps I am wrong, but I have to say that I think your real point is that you don't think warrantless domestic surveillance is a big deal.

Some of us do.

censure is defeated in committee or in the Senate and the president can once again claim "victory" over a partisan Democratic attack

I don't think Bush or his apologists will want to bring up the subject of censure even if it were to be defeated outright. Bush is brazen and shameless, but not (politically) stupid - at least most of the time (Port deal excepted). It probably won't ever come to a vote on the floor - a floor vote would mean debate. Do they want that? I imagine they'll want to write it off as a 'stunt'. If they want a debate, brang it on.

Anyway, the point is, Feingold did the right thing for the right reason: principle. Yes, it is a little risky, but you don't get rewards without risk. Like RD, I get depressed about our current Democrats' weakness and calculation. Feingold's move today, however, was different. And it was the perfect time to do it. Hit them when they're weak. Was it 'grandstanding'? Of course! It's what you're supposed to do! The only downside to grandstanding is when you do it poorly, as has been the Dem's wont in recent years. This was good grandstanding. Offering the resolution (like a bomb) is a good thing whatever happens to it in the Senate.

A censure on the port deal would've been not only extremely cynical and transparently 'political' on the part of both parties, but would've been much more of an advantage for the Repubs., as has been pointed out. The '06 congressional election comes first. Bush is already tanking right now. What Feingold does, on the floor and in commitee, is at least part of what an opposition party is supposed to do, IMO. When you don't have the votes, you have to beat them rhetorically (among other things). Even Gingrich et. al. were able to do that, and they had to lie and BS sky-high. The lesson I learn from the comparison of '94 and '06 is: speaking some sort of truth is powerful even when you don't mean it. It must be at least as powerful when you do mean it.

And notice Feingold left the door open to impeachment? IOW, he wasn't offering this resolution to forestall or somehow replace impeachment. Straight as an arrow.

A great moment.


I've enjoyed some of your posts on other topics, but I do not agree today. Most of my reasons were expressed by others.

I do agree that the public has not been taking the domestic spying seriously. I also agree little honor is usually given to the first to dramatize what the many do not want to know. But I think that the infrastructure of a police state is being built.

I trust no one with that power

No one.

I wasn't going to say anything, but I will defend myself and say I think warrantless domestic surveillance is an extremely important matter, but I don't think most Americans do, especially when they think it is only bad guys who are being surveilled. Also, I don't think Feingold can prove anything in an open Senate session, which leaves the question of whether it was legal or illegal hanging unresolved in the minds of most Americans. Thus, if nothing comes of this censure motion, the Bush supporters can rightly say that the Senate found no wrongdoing on Bush's part. Bush can claim he was defending the nation and any errors that may have occurred were the result of erring on the side of protecting the citizens of this nation from terrorists. Democrats are painted as obstructionist in the war on terror one more time. I don't see how much more can come of this, not as it will be filtered to the public through the national media. Where's the public outrage about the NSA warrantless surveillance? That's the piece that is missing from this whole Feingold censure scenario, and that's why it won't make a whole lot of difference in the weeks to come, well, maybe about as much as the Harry Reid special session trick so long ago. The public is still excited about that one, right? Yeah, right.

I think many people have misunderstood what Spector said today. He said that, while Feingold has stated [of course we think very convincingly] that FISA trumps the president's Article II authority, other legitimate scholars have put forward the Constitutional interpretation that Article II can't be limited by FISA in this context. Thus it is premature to censure the president. Instead a court needs to rule on this issue. Spector has offered legislation to grant the FISA court jurisdiction to do this. He said DeWine thinks the new Intelligence subcommittee should do this but that wouldn't be appropriate because they aren't a court. He repeatedly said he didn't think anyone could say whether the eavesdropping was lawful or not because up until the new subcommittee has been briefed this last week noone has been told what the program is about. He also stated that the administration hasn't complied with the law requiring the full House and Senate Intelligence committees to be briefed. While may be due to a fear that Congress will leak, the White House leaks too, and all the more reason for the FISA court, which has unquestionably been trustworthy about the classified info it has been given, should be trusted with the review. (He also slung mud at Feingold for not staying in the room to debate him, and urged that the Censure motion be given to Judiciary to consider so that Spector could debate Feingold there).

I am not saying I agree with his views, but this is definitely what he said.

"He repeatedly said he didn't think anyone could say whether the eavesdropping was lawful or not because up until the new subcommittee has been briefed this last week noone has been told what the program is about."
Bush confirmed on videotape that he authorized wiretaps of U.S. citizens without a FISA warrant. That's a crystal clear violation of the 4th Amendment and FISA. If Arlan missed Bush on videotape, he should get a full refund on that hearing aid.
From above in the comments: "The ENUMERATED, SPECIFIED, protections of citizens spelled out in the FOURTH AMENDMENT absolutely do "trump" any unenumerated, unspecified warpowers held by a President while the nation is NOT in a declared state of war."
I found Arlen's comments about what he "didn't know," silly and preposterus, to be kind. He's a United States Senator and the chair of the Judiciary Committee. Arlan, don't tell me in the well of the Senate what you "don't know." Get off your ass and find out. It's narrow, self-serving statements such as those, that give lawyers a bad name.

I think warrantless domestic surveillance is an extremely important matter, but I don't think most Americans do, especially when they think it is only bad guys who are being surveilled.

Polls at the moment (I think) bear out what you say, but that's because dems hadn't made it much of an issue. They squawked about it for a bit and that was it. The problem is that either Bush broke the law or he didn't - a little squawking is inadequate to this. It has to be made an issue. Do you think we should just follow the polls? That, my friend, is our problem. (Of course I'm not saying that polls should be ignored, either!). Democrats lose because they don't lead, (they react instead). Republicans win because they lead (very badly). Republicans move polls (in a very sophisticated way). Democrats typically merely react to polls. If regular voters are so hazy about the details of this, why can't they just as easily be hazy the other way? That's not going to happen by itself.

I hope I'm proven wrong, but I don't think there's going to be a big floor debate on this. Bush's infallibility on nat'l security is crumbling - via the ports deal and Iraq - so this is the right time to push. If there is a debate, do the republicans really want to argue that FISA is unconstitutional? I really doubt it. If, incrediibly, they do, what is DeWine doing? They're a mess on this and should be called on it sans pussy-footing.

I assert again that the fact of the Censure resolution is more important than what actually happens to it. If it's quietly killed, Feingold won't be quiet about it, and, anyway, the impression will have been made. On to the next one. If Republican Senators have to vote with the pres on it, and rub it in with a debate, all the better - even if they were in the right, it would be 'all the better', but of course they aren't right. Not all of them are up for re-election (like DeWine), but this is institutional as well as just electoral - if Senators aren't up for re-election, they have a more immediate reason to worry about the Senate itself. It's lose-lose for them.

The bottom line is that Bush did, deliberately and arrogantly, break the law, and it's simply the right thing to do to call him on it. It is a screaming gigantic sign of weakness on the Dem's part to NOT react forcefully. You have to do it. I'm glad Russ chose a good moment.

Roosevelt Democrat's argument gives rise to a false dichotomy. It is not either the Illegal NSA Wiretapping Censure or the Dubai Ports Issue. The Dubai Ports Issue will continue to play out regardless of what happens with respect to the Illegal NSA Wiretapping Censure at this time.

A Censure motion with respect to the Dubai Ports Issue would only serve to undermine the gravity of a Censure. The Dubai Ports Issue was detrimental to national security, incompetent foreign policy and political suicide but it did not give rise to "high crimes and misdemeanors." It was an egregious error in judgement but it was not criminal since it did not violate either the Constitution or the Statues. And yes, even though they may not have met the technical requirements, this is small potatoes compared to rendering the Constitution to be a quaint historical document as the Bush Administration has done with the Illegal and unConstitutional NSA Spying on U.S. citizens.

Roosevelt Democrat's argument for political expediency with respect to the Illegal NSA Wiretapping Censure reminds me of the all-too-often misguided Democratic Congressional Leadership's practice of "offending no one" less anyone be offended. It would appear that Congressional Democrats would prefer to let the Bush Administration narrative play out while they take a "wait-and- see attitude." In other words, their strategy could best be summed up as Had Enough? This hasn't been a winning strategy for the Democrats in the past and will not be one for them in the near future. Perhaps they believe that if they don't rock the boat, then events will overtake the Republicans. Of course, this has to coincide with the November elections. There are two problems with this strategy. First, you simply cannot follow a practice of "offending no one" without developing and maintaining an image of "not standing for anything." Second, you cannot totally depend on taking control of Congress on a strategy of "throw the bums out." You have to build the case for why the Republicans are unfit to govern and why they should be replaced by you, the Democrat. In the misguided quest to "offend no one," the Democrat Party ends up not being a strong voice for those it would represent. As a consequence, not only do they fail to sufficiently rally their base but they also leave many others sitting at home waiting for that "someone who speaks for them" to come along.

I do not question the sincerity of Senator Feingold in his quest for Censure. He has shown throughout his political career that he is willing to stand on principle even if it means he must stand alone. Although I have not been a huge fan of his in the past, in these very troubling and uncertain times, I find him to be a steadfast beacon that can be counted upon to sound the alarm, rally the troops and lead the charge to restore the Constitutional balance that is ever quickly re-weighting the scales of justice away from the common man. If not for Senator Feingold, where would we be?

I wholly agree with RonK that a Censure motion provides a unique opportunity for a "teachable moment." At that time, either we can make the case that the President must be held accountable for engaging in illegal and unConstitutional activities with respect to the illegal wiretapping of U.S. citizens or we fail to convince the public that what he is doing is detrimental to our system of government. We cannot ask for any more than this at this time. With Democrats in the minority in all branches of government, we have no other means of bringing an "out-of-control" Executive branch into balance than through the Censure motion.

All of the other issues will continue to play out. Katrina has happened. The people have formed their opinion of the "incompetence" of this Administration in its handling of the response to Katrina and other issues. Every time Katrina is brought back into the news, people are reminded of this. Iraq will continue to disintegrate. It is this disintegration that will create its own reality and the media will follow it because of the escalating deterioration in the situation there. The same is true of the many other myriad issues. They all will have their time in the media as current events transpire thereby bringing them back into focus. Democrats do not need a media strategy for this. It will occur naturally. A Censure discussion will not crowd out any of the other issues, as I suspect that Roosevelt Democrat and perhaps other establishment Democrats may worry. A Censure motion can help to frame all of the issues. It also encapsulates the dangers of this Administration's overreach.

Why bring up Censure now? Well, suppose that the Democrats are successful in winning back the House and/or the Senate in the November elections but they do it with a strategy of Throw the Bums Out or its variant Had Enough? Then when they bring up articles of Impeachment or a Censure motion, the Republicans cry politics. Will the public buy that it’s not just politics if the Democrats have said little before the election about Censure or Impeachment? Conversely, if the Democrats should lose in their quest to retake either the House and/or Senate, and then try to bring up Censure, will the public buy the Republican charge of it’s just politics and sour grapes? Bringing Censure up now sets the groundwork for the future. If the Democrats should be successful in bringing the motion to a vote but lose the vote and then they go on to win the November elections and regain the House and/or Senate, they can revisit the issue and claim a mandate from the public. If they cannot get a vote on the Censure motion now, then it’s yet aother huge stain on the “Rubber Stamp, Do Nothing Republican Congress” who lets the country drown, both literally and figuratively, while the all-too-powerful Executive shreds the Constitution in its never-ending quest for power. So, bringing up Censure now is not only important for our Democracy, since its aim is to bring a President to account for violating the Constitution, but it also sets the stage for later action by Congress.

Although I believe that the deterioration in Iraq and the "pumping up" of the Iran situation are of major importance, I also happen to believe that the Imbalance of Power created by an overzealous Executive under cover of the pretense of War is of paramount importance. If we allow a President to usurp his Constitutionally-mandated authority, to effectively neuter Congressional oversight and to call into jeopardy the independence of the Judiciary then we might as well say that this "grand experiment" that we call Democracy doesn't work in a time of terrorism. We can then recognize that the terrorists have won. And a all-too-powerful Executive can continue its transmogrification into a Unilateral Executive.

One can sum up the dangers of this Administration in three words: overreach, incompetence and cronyism (OIC). OIC should be the mantra of every Democrat every time they come within 10 feet of a newsperson or a news camera.

Thank you EmptyWheel for another interesting discussion and thank you to the commentors for their thought-provoking posts. Although we may disagree on this issue, Roosevelt Democrat, it is important that dissenting views are heard. Thank you.

Jon lays out the constitutional arguments, over which the American people have announced a yawn. The country doesn't really give a damn about itself. And that's the reason I'm moving to Canada.

Harry Reid wasn't a pugilist, btw, he was a wrestler.

I think Feingold did exactly the right thing for two reasons -- first, he may run in the Democratic Caucuses and Primaries in 2008, and he is raising an issue and setting a difference between himself and others potentially in the field on a significant issue -- Presidential Powers. Think in terms of Iowa, New Hampshire and S. Carolina on this one -- not the whole country polled without any breakdown. I'd even make it more narrow -- this is an issue that appeals in NE Iowa where Republican Jim Nussle is running for Iowa Governor and opening up his seat in a Democratic leaning district, and Russ Feingold is regularly going across the Mississippi to help the Dem Congressional Candidate in small and large ways, and gaining various chits in the process. And yes, the extent of Presidential Powers is a live issue in NE Iowa.

In contrast, Hillary is floating around the issue without comment. For some reason the good Democrats in New York have not raised it for her in her travels.

(I tend to think this issue plays similarly in New Hampshire -- they tend to be fairly flinty on privacy matters.)

I also tend to think keeping this issue alive and in folk's consciousness also keeps Bush's Generalship of the War on Terror (or Long War or whatever he calls it these days) alive. He certainly has not demonstrated he has "caught" any evil doers by these constitutionally questionable means. In fact today the big story is that he may fail in prosecuting Moussaoui because the DOJ Lawyers working for Bush can't follow the Court's rules with regard to coaching witnesses. If you can't do your one big essentially slam-dunk Terrorist Case within the constitutional Rules -- you have a competence problem.

Democrats are painted as obstructionist in the war on terror one more time.
- Roosevelt Democrat

RD, you are most likely correct that a lot of Congressional Democrats are afraid of taking on the Bush Administration b/c they are afraid of being painted as obstructionists. However, if they allow the Republicans to neuter them, then for what purpose do they hold one of the highest offices in the land? If they cannot speak out against a clear and present abuse of Executive power that degrades the freedoms guranteed by that quaint document they so swore to uphold in their oath of office, then we might as well move right along to that new form of government the Executive branch finds so dear, the Unitary Executive. If only Congressional Democrats could find their inner FDR: "There is nothing to fear but fear itself."

On a practical note, who's afraid of a President whose approval is in the mid 30's? Here we have a President who the public has judged to be incompetent in affairs at home and incompetent at prosecuting a war-turned-into-an-insurrection in the Middle East. This same unpopular President has also recently admitted that he didn't know about a deal to outsource the security of America's ports to an Arabic country with ties to the terrorists that struck on 9/11. But hey, maybe it's not the president they're afraid of. Maybe, it's the wizard behind the curtain, Mr. Rove. Would that be the same Mr. Rove who was involved in leaking the identity of a covert CIA agent thereby exposing not only her identity to the world but also all those people whose lives depended on that identity being kept secret? Excuse me, but what is there to fear?

Why do the Democrats want to re-take control of Congress? Is it to bring effective oversight to an out-of-control Executive? Is it to force some rationality into foreign and domestic policy? Or is it to control the Committees and be "King of the Hill" again?

Where's the public outrage about the NSA warrantless surveillance?
- Roosevelt Democrat

RD, that's what leadership is all about. The media is not going to drive this story. That is the job of the Congressional Leadership. Either it's a big deal that the President is violating the Constitution and the Law or it's not. The public will take their cue about the seriousness of this issue by what they see in the national and local media which is driven largely by what happens in Washington, D.C. If the Democrats in power are not united in making this a serious issue then the public will not do it on their own. We can help by talking about it with our friends and neighbors, by writing letters to the local newspaper, by calling into the local and national radio talk shows and by dragging the Democrats in Washington along (kicking and screaming if need be ;-).

It may be that the Democrats in Washington are more worried about power than about the Constitution and the proper balance of power among the branches of government. I hope not. And at this point, my trust in the Democrat Leadership in Washington has waned to the point that hope is all that is left.

When did doing the right thing become the wrong thing to do if you want to win elections?


The lack of public outcry, in my opinion, is because the case has not yet been made to Joe Q. Public. We cannot expect the media to drive the issue. Congressional Democrats will have to be the ones beating the drum. Senator Feingold's Censure Motion puts the issue back into play. It's now up to the other Democrats in power to unite, succinctly frame the issue and take their case to the public. The public can be rallied, but the case has to be clearly made and it has to be a sustained effort.

If the Democrats cannot hold the Administration accoutable for its willful violations of the Law and the Constitution while at the same time preparing for elections then a slender reed of hope will be our last refuge.

Jon, I know you mean well, and I admire your ideological (senatorial?) way of looking at things. I'm an old-style Democrat who thinks in less ideological terms and more in practical political terms, since being in power allows one to get things done, such as bringing an errant president to accountability.

If we could have censured Bush on a national security issue (Dubai ports, which is supported by public outrage against the president), then that would have been a permanent undermining of Bush's and the Republican Party's preceived strength on national security. Republicans cannot explain away Bush's position on Dubai ports on the basis of national security. The public knows better.

The NSA censure effort is calling attention to a possible civil liberties infringement (no one knows for sure exactly what has been done, and it will not come out in any public hearings, probably ever). At the same time, the NSA issue allows Bush to claim that he is looking out for our national security, and thus the whole NSA issue in a strange way plays to the Republican Party's strength on national security.

I would rather have a mortal wound to the Republican Party's national security image going into the 2006 elections, and a censure over the Dubai ports deal would be preferable at this stage to a defeat in the Senate on the NSA issue, and even a moral victory on NSA is very much in doubt as things play out with the public on that issue.

Right now the focus should be about raw politics (getting back into power in either the House or Senate or both), then we will actually be in a position to defend the Constitution against presidential crimes and misdemeanors, not just talk about it for the cameras.


Longterm, influencing public opinion is not a straight line. And there is no political power without public opinion because Congress does not lead; it follows.

In general, doing the right thing is the smart thing over the long term.

On top of that, it is the right thing.

But I do think tone of voice matters. Strident won't help a tenth as much as calm, forceful and factual.

It could blow up on Dems if they fail to project integrity.

The Republican's have enjoyed an advantage in every national election since 1980 because the public thinks they are more trustworthy to handle national security. That perception began in 1968, accelerated under Reagan, and was the main reason George W, Bush got re-elected in 2004. If we had pursued Dubai ports by following up with a motion to censure Bush's mismanagement of the issue, we could have passed the censure and once again established, at a minimum, a level playing field on national security for the rest of Bush's tenure. With Iraq going south, we would have a chance to re-establish Democratic ascendancy on national security. For now, though, Dubai ports, the first issue on which there were Democrats and Republicans in Congress and the public united against Bush, has been pushed aside to debate a long-shot issue with questionable political payoff in 2006. Not good strategy for Democrats, imo.


I agree that's what Specter eventually got around to saying. But there was a point in the speech where he had effectively asserted that Article II gave broad powers to the president and therefore the Senate had not standing to infringe on it with FISA. Only after he made that statement did he find a way to back off that stance with the unknown.

And actually, cafl's point responds to one raised here. I don't believe Specter had suggested the FISA review of this program before yesterday. Had he? Because if not, then by raising censure, Feingold has basically forced this into the court, the court that has already expressed some reservations on this issue.

The whole speech was a long, drawn out thinking aloudd (which goes to my point that Specter probably wasn't prepared enough to give a speech, which is why he wanted to refute Feingold to his face).

I wonder if Specter wanted the debate with Feingold in order to open the discussion to the wider Constitutional implications of the whole business of domestic spying, FISA or no FISA. He seems, at times, to take up the cause of protecting the Constitution and following the law, and, at other times, acts as an apologist for the Administration. I find him enigmatic, and not altogether repulsive, as some others do, although I have strongly disagreed with him in the past, going back to Anita Hill. He is a perfect example of someone who has been in office so long that he has lost his way. I think there is a struggle going on within him which reflects the tragedy of American political life: you give up your soul to stay in office, and whatever principles you had which motivated you to enter public service gets pushed into the subconscious.

Feingold, by contrast, is a consistent man of principle, and focused on his mission as a public servant, namely, to protect the Constitution and the rights of citizens. I think this is a simple message that will resonate with voters. No one wants to lose his privacy, his right of free expression, free association, etc. By bringing this resolution to the Senate, Feingold is bringing us back to the basic core of what it means to be an American, unlike Bush, who feels most "American" when he is bombing the hell out of another country.


Actually, I totally agree with your take on Specter. He fascinates me, more than repulses me. But I am sure that, every time he tries to find some compromise solution (Scottish Law, Single Bullet, and the like), it ends up failing, a pathetic attempt to avoid taking the hard stance and risking some political capital.

But, EW, what really is "political capital?" I think it is a nonsensical idea. Voters cry out for someone who acts on his principles. If the politician articulates this clearly, as Feingold has done, then there is no wiggle room for the argument. What gets politicians into trouble with the voters is this constant wavering in principle. That is what ruined Kerry for me, for instance.

I'm not suggesting that there can't be discussion with compromise on equally valid points, I'm suggesting that, for instance, Specter, a man thoroughly versed in the law, is going against principle when he doesn't support someone like Feingold in such a clear-cut example of law-breaking. We don't need an investigation of whether the President broke the law on wiretapping. He already admitted he did, thinking that it was his right as President. The politicians who accept the President's take on this have two options: censure, or acquiescence. The winner, or loser will be the law and the Constitution, and the citizens of this country.

The politician who takes this issue to the voter in the way Feingold has, stressing law and accountability and our Constitutional rights, can only win. Democrats who shy away from this have no principles worth my time, and I won't vote for them.

The Democratic Party has, for too long (actually, both parties) depended on marketing types to tell them what to say and how to say it. Honesty has its own charisma, or else, how could an ugly, awkward man from Illinois get elected President. Strategists have wreaked the political process, and although I find "roosevelt democrat" interesting, at times, in this discussion, today, I find his language and his thoughts symptomatic of the problem with the process. It's not hard to see what is wrong with it when political consultants switch back an forth between the parties, offering expensive advice. There is where principle gets lost, and the voters, as well.

I find a damn-the-politics-involved attitude almost naive to the extreme, and very symptomatic of what has been wrong with the Democratic Party for almost three decades. We'd rather win talking points than elections. A person gets elected by having more people vote for him than the other guy. It's that simple, especially in a two-party system. When an opportunity presents itself to undermine the other party's greatest strength, you take it. You don't wander off in noble but esoteric discussions about constitutional interpretations of the FISA law, especially when a large segment of the public does not see that their rights are endangered, probably only those of the "bad guys" if anyone, and that only if what you claim about illegal surveillance is true, which itself is debatable in the public mind. It doesn't really matter any more, though. The die is cast. The Senate will muddle through the NSA "debate" until it is allowed to die, probably in committee. Russ's supporters will feel good because he "made a stand." Bush's supporters will feel good because the Senate "found no wrongdoing." The Congress will pass whatever adjustments are necessary to make everything seem legal. Well before November, the public will tire of the issue and forget about it.

I am a long time resident of the great state of Wisconsin and an old friend of Russ Feingold. And a one-time active member of the Dane County Democratic Party. I worked with Russ on health issues when he was serving in the state Senate.
Russ is a puzzler to me. The description maverick suits him very well. He is a very ambitious man, and very bright. To me, he seems always to be reaching for the action that will bring him a headline or two. He tries hard to stand out from the crowd.
I tend to doubt his seriousness, except about himself. He is dead serious about promoting himself.
Russ is a stubborn man, and if his call for censure of the President turns out successful in terms of strong public support, he may just be the horse for the course.
Surprises hell out of me!
Marjie C.

I find a damn-the-politics-involved attitude almost naive to the extreme, and very symptomatic of what has been wrong with the Democratic Party for almost three decades.

RD has a point, but, for me, it needs unpacking. It depends on whether you're talking about political leaders or the party iself (us). And 30 years is too broad. It is preposterous to say that Democratic political leaders of the last decade+ have had a 'damn-the-politics' attitude! (do you mean the American Democratic party?!). Some parts of the 'base', on the other hand, certainly do - like all bases do to some extent. It's sort of the function of a base to be focused on first principles, no?

Our problem, as opposed to the Repubs (at least until recently) is a disconnection between the base and the leaders, a short circuit, and it's a problem at both ends; the base is often oblivious to political realities, but wants to dictate anyway. The two are out of touch with each other. But I think RD is being defeatist about this gambit. Whatever happens to this censure, why is it a bad thing for a political leader to connect with and fire up the base, particularly when you may also prick up people other than your own base? That tactic is not unheard of recently. What will have been lost in the Senate if censure fizzles? To lose something, you have to have something. I would be against anything which would thin the electoral gains the GOP is virtually handing to us in '06, but I'm still not convinced that censure does that. I disagree with RD in that the FISA issue can cut both ways.

The saw about the Democratic party is, of course, that we don't 'stand for anything'. Republicans conflate the Democrats' Liberalism and political dysfunction with the idea that (small 'l') liberalism itself doesn't 'stand for anything'. They're not kidding around. They don't like liberalism itself. What sense does our party make if our electeds can't even acknowlege a looming constitutional crisis? I mean, that's just weird. This whole deal is not about just FISA.

If you want to think about political realities, think about how each party looks to people, say, under 50. On the one hand, you have a GOP which seems to know what it believes in - basically, fear and nostalgia. On the other hand, you have a dinosaur with a tiny head and a huge body, and most everyone comprising the body is an amateur consultant (mea culpa!) confusing principle with tactics. How bad does it have to get before you (the under 50 voter) will get off your ass and a.) vote, and b.) vote for Democrats?

I haven't looked deeply into his eyes, so I don't know the soul and heart of Feingold. If he is just an opportunist, why does something so basic as insisting that the pres. is not above the law, that his execution of laws isn't optional, fall to the likes of Russ? (I'm not saying he is that, BTW). If I were 30 years old now (instead of closer to 50), I wouldn't be calling people 'vichy dems' etc. But I would be in the Rick Perlstein camp. If you never take ANY CHANCES, no matter how minute, you will get nowhere, and deserve to get nowhere. It really is small 'l' liberalism which is under attack here. If the Party won't even acknowledge that, we really don't stand for anything.

emptywheel, Spector suggested the FISA court review in his remarks at the end of the day when Gonzales was there. Again, I don't support his view as stated in response to Feingold, except in so far as I believe Feingold's resolution should be used as a stick to get actual oversight of the NSA eavesdropping, and then there (probably) will be much less contentious evidence to justify coming down on Bush. I don't think Spector articulated this position in a forceful way because he is a wimp, but I think he did articulate a) the fact that the lawful briefing of the intelligence committees didn't take place and b) independent review is necessary and should be done.

(The gods of TNH could just delete my last comment and) Go read Mark Schmitt's review of 'what-Democrats-should-do' books at The American Prospect, online here. Very good.

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