Censure as FARCE


I made it a point to catch a good bit of the “censure hearings” at one time or another on C-Span. This was the famous hearing held on 31 March before the Judiciary Committee of the Senate, pursuant to an approved resolution introduced by Democrat Senator Russell Feingold in behalf of securing an official censure of the president, accruing to the alleged illegality of the so-called “secret” activities of the National Security Agency. For a number of years, agents of the agency have monitored communications originating in other countries and directed to known or suspected Islamic operatives (cell groups) operating in this nation as terrorists…actually potential terrorists, since there have been no other attacks in this country since 9/11, notwithstanding the constant drumbeat that more are on the way. This should say something about the efficacy of the surveillance program so far.

It was planned that the judiciary Committee, made up of 10 republicans and eight democrats, would discuss the issue with a panel of five legal experts, at least in theory. This is what happened, but only after a fashion, since only three of the democrats and five of the republicans on the committee took part – eight out of 18. After doing their thing with the panel, the senators, with the exception of Chairman Specter, ranking member Leahy, and Hatch, seemed to be absent most of the rest of the time. Even Feingold, who was probably there most of the time, was not there all the time, according to reports. In other words, the hearing was not consensually important enough within the committee itself to convince members even to attend, much less take part. Actually, Feingold had only two co-sponsors to his censure request, in the first place – Senators Boxer and Harkin, probably two of the farthest-left politicians ever to inhabit the Capitol.

Of the panel, John Dean, former official in the Nixon administration (Nixon’s counsel) who served four months in prison for his part in the “Watergate Affair,” probably received the most abrasive treatment. He claimed that the NSA surveillance-program was a more serious threat to the nation than the Watergate matter – about as far-fetched as a claim could be, but, then, he has authored a book (April 2004) entitled Worse than Watergate: The Secret Presidency of George W. Bush and so could have had a vested interest financially in appearing at Feingold’s request. Quite a number of books by people unhappy with Bush have been published since he took office in 2001. Strangely, Dean almost talked out of both sides of his mouth. When confronted with stringent questioning by Senator Graham, he claimed that the White House cover-up was explained by Nixon to be on the basis of national security, rather than the protection of those guilty of a crime. This flew in the face of Feingold’s effort, since Bush has claimed the surveillance-program to be in the same interest – national security.

The usually glib, soft-spoken Leahy, known in Washington irreverently as Senator “Leaky” Leahy because of his well-documented leaks of even classified documents, lost his cool this time around, the only time I’ve seen that. Panelist John Schmidt, a democrat and former Justice Department official in the Clinton administration, spoke apparently without notes and excoriated Senator Feingold to a degree leaving nothing to the imagination (and in the process with seeming pleasure took an exquisite swipe at Dean, seated next to him), to which performance Leahy responded with his voice ever rising until he was virtually at the edge of hysteria. This was marvelous theater; Schmidt had simply destroyed any claim that the NSA methodology could be considered illegal, laying out a step-by-step approach so logical as to be breathtaking but ending, in the final analysis, with the fact that the president, under the Constitution, had virtually unlimited powers to exert in protecting the nation. Viewers of the hearing – or any others – when placing themselves under the gun, as is the case of the president with regard to national security, can identify with this, as long as there is a guarantee that no citizen’s actual rights are violated…though, even in some cases in which they are, such as when presidents have suspended the writ of habeas corpus, an action taken by both Lincoln in the 1860s and Roosevelt in the 1940s.

Specter and Graham were interested in the matter as an effort to discover at what point the president or the Congress steps over the line with respect to sharing (or not sharing) power. This had little to do with national security, and Specter said at the beginning that he thought the censure motion was without merit. Graham, exhibiting some passion himself in excoriating Dean, told the former Nixon aide that he considered the two affairs (Watergate and the NSA surveillance) to be a comparison between apples and oranges. This same power-sharing theme was front and center in the recent hearings concerning Roberts and Alito, nominees to the Supreme Court. Feingold, at least ostensibly, staked his claim on the right of a citizen – any citizen apparently – not to have his privacy violated, unless with some sort of court order no matter how long it took to get it, notwithstanding the need for immediate action that might dictate otherwise. His approach might be vitiated, however, by the fact that he may have in mind a run for the democratic nomination with respect to the presidential election in 2008. How better to establish a high-profile position than to take on the president…on any matter? His colleague on the committee, Senator Biden, announced months ago for the job, but saw fit to avoid this hearing altogether…so, which man, if it actually makes a difference, made the right choice?

Also on the panel of experts were Bruce Fein, a constitutional lawyer and international consultant, Robert F. Turner of the Center for National Security Law, and Lee Casey, a Washington lawyer. The most surprising was Fein, a deputy attorney general in the Reagan administration whom many may remember as the skinny lawyer that appeared frequently on TV. He came across as so aghast at the very idea that the surveillance program was in place that he simply “protesteth too much.” In other words, he sounded phony. Casey and Turner, the latter almost belligerently, blew off any notion that the program violated anything. Indeed, as was noted often, the program was known not only to the judges responsible for adjudicating acts in light of the Foreign Intelligence Surveillance Act, but was periodically spelled out to the appropriate members of Congress, none of whom in either party had voiced objections.

Besides being totally unwanted by senators in either party, the hearing, if anything, established rather firmly the fact the president has been totally within his powers in subscribing to the NSA surveillance activity, and that its exposure has been detrimental to the “war on terror.” This last is the tragedy connected to the whole nine yards. As for Feingold, he simply may not understand that the average Joe feels he has nothing to fear because he has nothing to hide, even if his privacy may accidentally be invaded, as it can be all the time, anyway, by computer hackers, credit-card companies, etc. If Feingold was laying down a marker for a presidential run, he certainly gained the support of the lunatic fringe – the Leahy/Howard Dean crowd, for instance – but he most likely lost those in both parties who are susceptible to being reasonable.

And so it goes.