During the Watergate hearings, then-Senator Howard Baker, a Republican, showed tremendous courage, and a deep sense of Congress’s duty to hold President Nixon accountable, when he asked that now-famous question: "What did the President know and when did he know it?" Baker was one of a handful of Republicans during the scandal who stood up to their party, and to the President. Today, as the President admits, even flaunts, his program to wiretap Americans on American soil without the warrants required by law, we need more courageous Republicans to stand up and check the President’s power grab.
When the President breaks the law, he must be held accountable, and that is why I have introduced a resolution to censure the President for his actions. Yet, as we face a President who thinks he is above the law, most Republicans are willing to cede enormous power to the executive branch. Their actions are not just short-sighted, they are a departure from one of the Republican Party’s defining goals: limiting government power.
Some Republicans are defending the President’s conduct as appropriate and arguing he should have free rein to continue his program, regardless of whether it is legal. Others seek to grant him expanded statutory powers so as to make his illegal conduct legal. But current law already allows a wiretap to be turned on immediately as long as the government goes to the court within 72 hours. The President has claimed an inherent authority to wiretap Americans on American soil without a warrant that he thinks allows him to break this law. So why would anyone think the President will comply with any new proposal? The constitutional system of separation of powers demands that we check a President who recklessly grabs for power and ignores the rule of law, not reward him—particularly when the law he breaks is designed to protect innocent Americans from intrusive government powers.
As many Republicans focus on defending the President, they are losing sight of what ceding these powers to the President now will mean for their own party down the road. Those expansive powers will rest with whoever sits in the Oval Office. Republicans who argue today that the President has the power to ignore a law passed by Congress are relinquishing authority not just to this Republican President, but to future presidents of any party. They are helping to render future members of their own party powerless to check an executive who claims expansive powers under the Constitution or a future Authorization for Use of Military Force resolution.
The Republican effort to defend the President works against the party in the long run, and it also goes against the party’s longstanding rhetoric about checking government power and strengthening individual freedoms. It’s hardly in keeping with those values to allow Americans’ communications to be monitored without a warrant, or to concentrate power in one branch of government. One of the best ways to limit government power is to ensure that each branch provides a check on the other two, but most Republicans in Congress today aren’t checking the President’s power or defending the judicial branch’s right to do so—they are giving him a blank check to ignore the rule of law.
A party that prides itself on limiting government, and supporting individual freedom and the rule of law, should think twice before it allows any President to ignore the laws that Congress passes. By supporting the President now, Republicans are making it tougher for members of their own party to challenge the power of future presidents and departing from their own values in the process. That’s a short-sighted strategy that won’t serve either party, or the nation, in the long run. What would serve the nation, and support the rule of law, is for a few courageous Republicans to follow the example set during the Watergate scandal by standing up to a President of their own party, asking tough questions, and holding the President accountable for his abuse of power.
Russ Feingold is holding censure hearings today, but you'd never know it from looking at the traditional media. Except for the New York Times, the media are mum.
But here's what we do know, for those of us not watching C-SPAN:
The committee met to consider a resolution by one of its members, Senator Russell D. Feingold, Democrat of Wisconsin, to censure the president over the surveillance program. The resolution was not voted on and is almost surely going nowhere, but it still had the power to ignite feelings.
Under Mr. Bush's theory of government, Mr. Feingold said, "we no longer have a constitutional system consisting of three co-equal branches of government. We have a monarchy."
Senator Patrick J. Leahy of Vermont, the panel's ranking Democrat who was congratulated on his 66th birthday today in a rare moment of bipartisan friendliness, sided with Mr. Feingold, although stopping short of saying he would vote for censure.
The Congressional resolution of force passed after the attacks of Sept. 11, 2001, makes no mention of surveillance, Mr. Leahy said, yet "the administration claims now that Congress unconsciously authorized warrantless wiretaps."
"This is 'Alice in Wonderland' gone amok," Mr. Leahy said. "It is not what we in Congress said, and it certainly was not what we in Congress intended."
But Senator John Cornyn, Republican of Texas, said Mr. Feingold's move was "completely without merit," and he spoke contemptuously of one witness, John Dean of Watergate fame, as "a convicted felon" bent on publicizing his books.
"And I believe that the American people would view what we are about here as part of the surreal atmosphere that they believe, and sometimes correctly so, is completely out of touch with the rest of the United States," Mr. Cornyn said.
Another Republican, Senator Jeff Sessions of Alabama, wondered why "the national spasm" over the surveillance program had not run its course. The president was within his rights and within the law to have the National Security Agency do limited surveillance, and he has kept Congressional leaders informed, the senator said.
Mr. Sessions said Mr. Feingold's resolution was irresponsible, "and it has the potential to send abroad throughout the terrorist community and to those who are watching our resolve around the world a very perverse and false message."
The panel's chairman, Senator Arlen Specter, Republican of Pennsylvania, said he too thought Mr. Feingold's resolution was without merit. "But it provides a forum for the discussion of issues which really ought to be considered in greater depth than they have been," Mr. Specter said.
The expert witnesses were also far apart.
"The president did not break the law," said Prof. Robert Turner of the University of Virginia's Woodrow Wilson Department of Government and Foreign Affairs. "Every wartime president, even every wartime leader going back to George Washington, when he authorized the opening of British mail coming into the United States during the American Revolution, has done this kind of behavior. It's essential to the successful conduct of war."
But Bruce Fein, a lawyer who worked in the Justice Department in the Reagan presidency, said Mr. Bush's assertions of powers "have to be taken as permanent changes on the political landscape on checks and balances." The president's claims are "extravagant" and his interpretation of the authorization given him by Congress "is not just wrong, but preposterous," Mr. Fein said.
Then there was Mr. Dean, the White House lawyer for President Richard Nixon, making his first appearance before a Congressional panel since he mesmerized the country in his Nixon-incriminating testimony before the Senate Watergate Committee more than three decades ago.
Mr. Dean, who spoke in favor of Senator Feingold's measure, is the author of the 2004 book "Worse Than Watergate: The Secret Presidency of George W. Bush." Presidents "push the envelope as far as they can" in their power struggles with Congress, Mr. Dean warned. Had Mr. Nixon been censured, "it would have been a godsend," Mr. Dean said, apparently meaning that all the abuses that led to Mr. Nixon's resignation might never have happened.
One thing Mr. Dean said prompted no disagreement whatever. "I must say, I think I have probably more experience first-hand than anybody might want in what can go wrong and how a president can get on the other side of the law."
And herein lies the failing of our system of government: The men who wrote the documents which created our system of laws made the mistake of assuming that those called to public service would put the good of the country and the rule of law ahead of party loyalty. Alas, the current crop of Republicans do not meet that standards. And if that means helping George W. Bush turn this country into a monarchic dictatorship with him at the helm, in perpetuity, they'll do it....because they are Republicans.
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