Stop the Attack on Our Constitution

Yesterday, Senator Russ Feingold introduced a resolution to censure President Bush for breaking the law by illegally wiretapping American citizens.

As most of you know, Sen. Feingold is and has been a breath of fresh air in that he is a Democrat who shares progressive values and has the spine to stand up for what he thinks is the right thing to do. I can recall some 25 years ago when I was in school at the University of Wisconsin-Madison, that his name was mentioned often and in favorable tones among state politicos who valued his insight, integrity and honesty.

I share the same feelings about his colleague, (who happens to be a Republican) Senator John McCain. You may recall that these two authored the “Bipartisan Campaign Reform Act of 2002”, commonly referred to as the “McCain-Feingold Act”. This bill was passed in 2002 and was challenged in the Supreme Court by, among others, the Democratic party to which Mr. Feingold belongs as well as a host of others all along the political spectrum. For more on Campaign Reform, please see, e.g.,
http://en.wikipedia.org/wiki/Campaign_finance_reform#Bipartisan_Campaign_Reform_Act_of_2002

It should be noted that Senator McCain has, by speaking his mind and acting accordingly, caused some consternation among his “conservative” base in Arizona. See, e.g., http://www.freerepublic.com/focus/f-news/1421461/posts . Apparently, it is permissible to be a Republican if you also must qualify as an obedient lap-dog. An obedient lap-dog Senator McCain is not.

Sen. Feingold has also come under fire from some in his own party for having initially voting against the war in Iraq and against the Patriot Act (the only Democrat to do so) not because he disagreed with what President Bush’s conception – keep terrorists at bay here in this Country – but rather in the execution of that conception. Sadly prescient, he. If we only knew then what we know now… Senator Feingold is above reproach in his political stances even if one disagrees with them, a remote possibility, but a possibility nonetheless. One can rest easy knowing that he is voting after giving all sides to an issue a fair hearing and an opportunity to be heard and with the knowledge that his position has been carefully considered. That, after all, is really all we can ask of our representatives in Congress, so many of whom are more concerned with reelection and pleasing their corporate constituencies.

Senator Feingold appeared with George Stephanopoulos of ABC’s “This Week” program on Sunday morning. He explained why the censure was necessary:
STEPHANOPOULOS: Tomorrow in the Senate, you're going to introduce a resolution to censure George W. Bush. Let me show that to our viewers.
It says, "Resolved that the United States Senate does hereby censure George W. Bush, president of the United States, and does condemn his unlawful authorization of wiretaps of Americans."
That is a big step. Why are you taking it now?
FEINGOLD: It's an unusual step. It's a big step, but what the president did by consciously and intentionally violating the Constitution and laws of this country with this illegal wiretapping, has to be answered.
There can be debate about whether the law should be changed. There can be debate about how best to fight terrorism. We all believe that there should be wiretapping in appropriate cases -- but the idea that the president can just make up a law, in violation of his oath of office, has to be answered .
STEPHANOPOULOS: But as you know, the president says he was acting on his inherent authority under the Constitution -- and even your resolution acknowledges that no federal court has ruled that a president does not have that authority as commander in chief.
So aren't you jumping the gun?
FEINGOLD: Not at all. You know, we've had a chance here for three months to look at whether there's any legal basis for this -- and they're using shifting legal justifications.
First, they try to argue that, somehow under the Foreign Intelligence Surveillance Act, they can do this. It's pretty clear that they can't.
Then there's the argument that somehow the military authorization for Afghanistan allowed this. This has basically been laughed out of the room in the Congress.
So the last resort is to somehow say that the president has inherent authority to ignore the law of the United States of America.
STEPHANOPOULOS: Inherent authority...
FEINGOLD: And that has a consequence that the president could even order the assassination of American citizens if that's the law.
So there is no sort of independent, inherent authority that allows the president to override the laws passed by the Congress of the United States.
STEPHANOPOULOS: So if you're so convinced -- if you're so convinced -- that the president has broken the law, why not file an article of impeachment?
FEINGOLD: Well, you know, that's an option that we could look at, if somebody thought that was a really good idea.
There are other options out there.
In fact, this conduct is right in the strike zone. Even though the founding fathers, they didn't have strike zones; they didn't have baseball -- but this is right in the strike zone of the concept of high crimes and misdemeanors.
STEPHANOPOULOS: So are you pulling your punch?
FEINGOLD: We have to consider: Is it best for the country to start impeachment proceedings? Is it best for the country to consider removing the president from office?
We're not mandated to impeach a president who has broken the law, but I think we are required to do our job to live up to our oath of office and say, "Wait a minute, there has to be" -- at least as a first step -- "some accountability."
STEPHANOPOULOS: But...
FEINGOLD: Proper accountability is a censuring of the president
-- saying: "Mr. President, acknowledge that you broke the law, return to the law, return to our system of government."
That's what I think we should do.

The fact sheet put out by Senator Feingold’s office is direct and to the point.
# # #
FACT SHEET FROM U.S. SENATOR RUSS FEINGOLDON HIS RESOLUTION TO CENSURE THE PRESIDENT
Senator Feingold’s resolution of censure condemns the President for breaking the law by authorizing an illegal wiretapping program, and for misleading Congress and the American people about the existence and legality of that program.

The President Broke the Law by Wiretapping Outside of FISA

It Is Illegal to Wiretap Without the Requisite Warrant or Court Order: The law is clear that the criminal wiretap statute and Foreign Intelligence Surveillance Act (FISA) “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.”

FISA Has an Emergency Exception: The Administration has indicated that it ignored FISA because the application process takes too long. In fact, in an emergency where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits him to immediately authorize the surveillance as long as the government goes to the court within 72 hours. Prior to 2001, the emergency wiretap period was only 24 hours. The Administration requested and received the increase to 72 hours in intelligence authorization legislation that passed in late 2001.

FISA Provides for Wartime Situations: FISA also permits the Attorney General to authorize warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA necessitated by a wartime emergency.

The Administration Has Used FISA Thousands of Times Since 9/11: Administration officials have criticized FISA, but they have obtained thousands of warrants approved by the FISA court since 9/11, and have almost never had a warrant request rejected by that court.

The President Made Misleading Arguments Defending his Wiretapping Program

Military Force Resolution Did Not Authorize Wiretapping: The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the Authorization for Use of Military Force after September 11, 2001. There is no language in the resolution and no evidence to suggest that it was intended to give the President authority to order these warrantless wiretaps. Warrantless domestic surveillance is not an “incident of war” akin to detaining an enemy soldier on the battlefield as the Administration has argued.

In fact, Congress passed the Patriot Act just six weeks after September 11 to expand the government’s powers to conduct surveillance of suspected terrorists and spies. Yet the Administration did not ask for, nor did the Patriot Act include, any change to FISA’s requirement of judicial approval for wiretaps of Americans in the United States.

Prohibition on Wiretapping Limits Executive Power: The President’s assertion of inherent executive power is also wrong. The President has extensive authority when it comes to national security and foreign affairs, but given the clear prohibition in FISA, that authority does not include the power to wiretap American citizens on American soil without a warrant.

Executive Branch Review of Wiretapping Is Not Enough: The President has argued that periodic executive branch review provides an adequate check on the program. But Congress when it passed FISA explicitly rejected the idea that the executive branch should be fully entrusted to conduct national security wiretaps on its own – a power that the executive had abused in the past. In addition, the Administration has said that NSA employees decide whose communications to tap. Executive branch employees are no substitute for FISA Court judges. (emphasis mine)

Congress Did Not Approve This Program: The extremely limited briefings of the President’s warrantless surveillance programs to a handful of Congressional leaders did not constitute Congressional oversight, much less approval. In fact, the failure of the President to keep the Congressional Intelligence Committees “fully and currently informed of all intelligence activities” was a violation of the National Security Act.

The President Made Misleading Public Statements about Administration Wiretapping

“Finally, we need to renew the critical provisions of the Patriot Act that protect our civil liberties. The Patriot Act was written with clear safeguards to ensure the law is applied fairly. The judicial branch has a strong oversight role. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.”

--President George Bush, June 9, 2005, in Columbus, Ohio

“A couple of things that are very important for you to understand about the Patriot Act. First of all, any action that takes place by law enforcement requires a court order. In other words, the government can't move on wiretaps or roving wiretaps without getting a court order. Now, we've used things like roving wiretaps on drug dealers before. Roving wiretaps mean you change your cell phone. And yet, we weren't able to use roving wiretaps on terrorists. And so what the Patriot Act said is let's give our law enforcement the tools necessary, without abridging the Constitution of the United States, the tools necessary to defend America.”

--President George Bush, July 14, 2004, in Fond du Lac, Wisconsin

“Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

--President George Bush, April 20, 2004, in Buffalo, New York

Here’s the Resolution in its entirety in .pdf format: http://feingold.senate.gov/censureresolution.pdf

Yesterday, Sen. Feingold appeared on CNN to discuss his Senate Resolution to censure President Bush. Again, he agrees with the conception that terrorists should be listened in on and stopped before they can do damage to our country (again). It is in the execution that President Bush has failed at:
http://www.cnn.com/video/player/player.html?url=/video/politics/2006/03/13/feingold.bush.censure.cnn

He perseveres, as should we, in discovering how this country can sit back and watch as its Constitution is destroyed. As far as the present issue is concerned, it is high time that we realize that our constitution is under attack, and not just by Al-Qaeda.

It is under serious threat by this President who, under the cloak of executive privilege and presumed power as commander in chief of our armed forces, thinks and acts like he can do anything he wants to whomever he wants. The “outing” of Valerie Plame was just one incident.

In case the administration’s spinmeisters spun that one past you, a member of the Bush administration leaked the name of a CIA operative to the Washington Post because her husband, Joe Wilson, had criticized as untrue the administration’s claim that Iraq had sought to acquire nuclear material from the African country of Niger.

Today, Vanity Fair reported that former Washington Post executive editor Ben Bradlee says it is reasonable to assume former State Department official Richard L. Armitage is likely the source who revealed CIA operative Valerie Plame's name to Post Assistant Managing Editor Bob Woodward. http://www.washingtonpost.com/wp-dyn/content/article/2006/03/13/AR2006031301904_pf.html

By all accounts from respected journalists who cover Washington, there is a climate of fear among those who would criticize the administration that pervades what kind of news we hear out of Washington. Just how successful has President Bush been in intimidating journalists and others who would ask “Why?” Perhaps that self-censorship is just a little less now than it was, but that is only because President Bush’s ratings have dropped to an all-time low – people in all those red states are finally waking up to discover that President Bush is NOT on the side of the “little guy”, and so perhaps it is safe to start talking freely again – maybe. And if all those “conservatives” have seen enough, perhaps some of them will have the intellectual and intestinal fortitude to walk their talk.

Those Congressmen that choose to stand up to Bush and the power-elites in Washington will, in the end, be the true heroes for us in these days of national agony. They will be remembered as the true Progressives. We will stop using labels that have been defined out of existence such as “liberal” or “conservative”. Instead, we will vote and arrange our political lives in accordance to what we believe are the right things to do and steps to take, regardless of party affiliation and single-issue interest groups and always upholding the law. And if the law is wrong then change it. But we cannot have a sitting President blatantly and cheerfully cynically tell us to our faces that he is above the law. Even President Nixon tried to cover-up his approval of the break-in of a political opponent’s psychiatrist’s office at the Watergate. We know from the experience in Germany in the 1930s, Russia in the 1940s-50s and China under Mao in the 1960s what can happen when a government becomes centered around men and not laws that were enacted by the people’s elected representatives.

What is going on now is the re-enactment of nothing less than Dr. Josef Goebbels’ “Big Lie” theory: if you repeat a lie with earnest intention (I do not question President Bush’s earnest intent) often enough, people will start to take that lie as the truth. And so it was in Germany in the 1930s and 40s. We are fortunate today to have a (mainly) free press unlike Nazi Germany, Stalin’s Russia or Maoist China so that the machinations that trigger calls for the censure of the President of the United States can see the light of day despite their best efforts to the contrary. Hopefully our government has not set up concentration camps or gulags for journalists or others who might have been deemed, in a different time in a different place “undesirable”.

Let there be no doubt, however, that we are at a precipice: what we are talking about at the core is how people think about their government, and accordingly how they interact with it - whether it is through newspapers, the internet or talk over coffee at Starbucks. President Bush, under the cover of a thus-far compliant, malleable Republican Congress, has thus far been able to spin, wheedle and avoid any real popular reaction to what he has done to this country. With a complicit Republican-controlled Congress, he has cut off the access to information that would allow those who would protect and defend our country from finding out the truth about the run-up to the war as well as the illegal wiretapping that is taking place. This must end. It must come out from under the rug.

In addition to the Senate Resolution introduced by Senator Feingold, similar resolutions were introduced in December in the House of Representatives by Hon. John Conyers (D-Mich.), the ranking member of the House Judiciary Committee concerning the lies and deception that were practiced on the people of the United States on the run-up to the Iraq War by President Bush and Vice-President Cheney and others. http://www.huffingtonpost.com/john-conyers/the-constitution-in-crisi_b_12626.html?p=3 Representative Conyers has called for the establishment of a special committee to investigate the activities of the Bush Administration.

“Over 55,000 people have signed up to become Citizen Cosponsors of my House Resolution 635 which would create a Special Committee to investigate whether any crimes committed by the Bush Administration rise to the level of impeachment. The creation of a special committee is the same deliberative step taken by former Judiciary Committee Chairman, Sam Ervin, to review the Nixon Administration's conduct prior to deciding whether to pursue articles of impeachment. If you haven't signed yet, or know others who should, this is the link.” http://www.conyersblog.us/

Those resolutions are based on facts and law contained in the Investigative Status Report of the House Judiciary Committee Democratic Staff, the executive summary of which you can download here: http://www.afterdowningstreet.org/downloads/section1.pdfIts title is The Constitution in Crisis; The Downing Street Minutes and Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq War (This Report is 273 pages.)Full Report

While the investigation is incomplete, President Bush has admitted facts that, if true, would constitute a prima facie violation of (at least) the Foreign Intelligence Surveillance Act. What is more troubling is that the Bush administration is not cooperating with Congress in trying to get to the bottom of any of these issues, choosing instead to allow Congress and the electorate (us) to operate in the dark, with only a few brave souls willing to stand up and be counted. And Senators McCain and Feingold and Representative Conyers are those souls.

Censuring the president is a reasonable first step in condemning the president's actions in regard to illegal wiretapping. Now it's up to us to show broad public support for Senator Feingold's resolution.

Please consider signing this petition asking Congress to join the call for censure: http://political.moveon.org/censure/