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Censure Hearing, Part II


SPECTER FIRST ROUND: Asks Dean about his questions about impeachment for the President in his "Worse than Watergate." Dean says that he sees bad faith – but doesn’t see bad faith as a prerequisite to censure. (RH: Specter is doing rapid-fire questions in the cross-examination style, btw.) Asks Fein about Article II and secrecy – telling the Gang of 8, etc. – goes on and on about this and gets to a question at the end – isn’t there some basis for the President to argue that he did notification? Fein says that Congress and the public does not have the information as to what information he was given in terms of advice – that the President is holding that back, and this needs oversight as well. Second, that accountability requires that the Congress of the US, not just one or two members, to enable an assessment of its legality and wisdom. You cannot assess reasonableness based on sketchy information – there must be a collective judgment of Congress brought in order for Congress to adequately do its job.

LEAHY FIRST ROUND: Makes point that Gonzales testified on the issue of oversight, and that Leahy lost count the number of times the AG dodged the questions. On to Dean – if President doesn’t agree with the law, the President just can’t break the law, can he? He has to request changes in the law? Dean agrees – says President has decided to use this as another vehicle to test limits of his power. Leahy makes point that the resolution to go into Afghanistan was not a declaration of war – was agreement to allow Administration to go after Bin Laden (which ironically they haven’t done, Leahy says – good one!) – does declaration of war allow President to violate the law? Dean says no. On to Fein – raises national security concerns on the Dubai ports question. Here we had an express federal statute – Administration didn’t bother to follow the law on this and carry out the required investigation. No one called for censure there – why is it appropriate here? Fein says that the magnitude of Constitutional impact here is so much greater. President could open mail, break and enter into our homes, he can torture detainees irrespective of the laws – the consequences of endorsing the "inherent authority" theory has no end, and they are substantial. Congress has the power to regulate the US government. President has inherent authority to gather intel – but Congress has the power to regulate the means. On July 31, 2002 – the Bush Administration said that FISA was working beautifully in testimony – what has happened that the Bush Administration decided to break that law? On to Schmidt – you said that President acted on basis of credible legal advice? How do you know, since the AG has refused to turn over documentation? Well, Schmidt is relying on what Gen. Hayden and the President have said publicly, and doesn’t have any particular information on this.

HATCH FIRST ROUND: Begins with a condescending tone – "ridiculous" "c’mon" "President’s do have powers." Goes back to article that Dean wrote right after 9/11 – President does not require immediate Congressional authority to act. (RH: I’d note that this is correct – for a very short, immediate period. This is not true, however, for a long term action. That Hatch knows this and is acting as if he is confused on this is incredibly manipulative and he’s continuously interrupting Dean’s answer.) Goes to Turner – who says that the President is merely trying to restore his level of power back to his original Constitutional balance, taking back that power that was taken away from the Executive branch after Vietnam. (RH – So Turner is there as the Federalist Society voice fo the Cheney doctrine. Good to know.) Goes on to the Moussaoui/Rowley argument and misstates the facts. Then on to Schmidt with regard to the Leevy issue again.

FEINGOLD FIRST ROUND: Begins with an observation that Comey and Ashcroft who had concerns about this program have been barred from testimony by the President and the AG – and brings up the question of cover-up. Enters Gerhard’s article that Dean referred to into the record. Goes on to discuss the censure of Clinton resolution. Offers to add the words "bad faith" to the censure resolution draft. President went around the nation making misleading statements and failed to notify Congress about this program in accordance with the law. Asks Fein about legal advice question. Fein says that you cannot have checks and balances with an unknown program – that without the NYTimes publication on this program, the President would have left office celebrating keeping this program from appropriate oversight. This sort of secrecy breeds contempt for the laws, and invites overreach – and without oversight this is troubling and problematic. Asks Dean about the statements given by the President which were misleading and inaccurate publicly – and hiding the program from Congress.

SPECTER ROUND TWO: Why does Fein persist in saying that it was secret when Gang of 8 was informed? Because role of checks and balances has to involve full disclosure. No one knows how many Americans have been spied upon – Specter argues that Fein isn’t the last word in terms of what information was given, and haggles with Fein on how much he might know. Fein counters by saying that he may not be a member of Congress, but he is a citizen of this country who cares about the health of the Republic, and not a monarchy. And that checks and balances must be appropriately observed. Turner raises his hand and wants to address something that Fein said. Specter tried to slow down whatever he was going to say, and asks his own question about what would be wrong with the President submitting to the FISA court what domestic surveillance is ongoing in this program – especially in a 4th amendment context with the argument on inherent authority and reasonableness standards? Turner goes into e-mail and new phone technology and rambles on for a bit about Congress and changing members of their committees can’t adequately do their jobs. (RH: Oh yeah, that’s a good argument for Senator egos. Good one.) In 99% of cases, FISA provides a good check – but when you are talking about terrorists, it weakens the President to require oversight. Then Specter reprimands Turner for not answering his question. (RH: Bwahaha.)

GRAHAM ROUND ONE: Addresses Fein – agrees with some of his checks and balances arguments. WH believes the inherent authority argument. And now the Mean Huckleberry cross-examination boy begins his act. (RH: Just FYI – this is an effective courtroom tactic. Have used it often. His trial experience is showing again.) Not allowing answers – Specter interjects and tells Huckleberry to allow Dean to answer the questions. We’re back to even-handed Huckleberry now – this is about what the President can do while we are at war – isn’t that a troubling thing?

LEAHY SECOND ROUND: As Turner noted, there have been many changes in technology. The President and Congress have asked for and made many changes. The President asked for no changes here. Asks Fein about the differences between inherent authority and plenary authority. Congress decided to regulate a narrow portion – when the target is an American citizen on American soil – and Congress said that they want a neutral magistrate to check on the reasonableness on the executive branch’s power for search and seizure. Reminds committee that the Bush Administration’s own DoJ said that FISA was working perfectly in 2002 – months after the warrantless program was underway. On to Dean, who says that we are in a period where the President is defying the Congress – pushing the envelope of the separation of powers – like Nixon who tested where he could do so. The reason history is repeating itself is that there is no check (RH: Do the words "Rubber Stamp Republican Congress" leap to mind?).

HATCH SECOND ROUND: Well, gosh, I don’t see any evidence that the President is defying Congress. (RH: Since Congress rubber stamps whatever he wants, you probably don’t see that, do you Orrin?) Gosh, if the President wants to keep doing what he wants to do, we’ll just amend FISA to allow him to do whatever he wants – that’s what I think we ought to do. Gets to Casey, finally – and asks whether he agrees with Hatch that Article II gives the President inherent authority to do whatever he feels is necessary to defend the US. Yep, Casey agrees. (RH: Shocker.) Then Hatch tries to smear the Feingold resolution on censure by selectively reading bits and pieces – Casey disagrees with the bit Hatch reads, based on his philosophical disagreement in interpretation, but says that – contrary to what Hatch said – he doesn’t find the argument absurd. Hatch then turns to Turner. Hatch says that the point of the resolution is to censure the President for his conduct in the War on Terror (RH: Lie.). Turner discusses the 2002 case again – and says President has inherent authority on international surveillance. Turner goes off on a deceiving the Germans with inflatable tanks in WWII analogy to keeping secrets from Congress – and then back to Marbury v. Madison again and the power of intelligence being given to the President. (RH: Again, nothing from Turner as to the conflict between 4th Amendment and surveillance on American soil.) Then Turner goes on to Roe. Hatch says Feingold is a friend and then kisses Specter’s butt – and then says he violently disagrees with censure and that amendment of FISA is important.

SPECTER QUESTION: Turner, since you think Congress violated the law with FISA, should Congress be censured? Turner says Congress that passed FISA in 1998 (oops – meant 1978) ought to be censured.

FEINGOLD SECOND ROUND: Greatest threat to the Republic is that we are seeing a threat to dismantle our government by using this time of war – torture, overreach under the AUMF, etc. The argument of the Administration on the AUMF authority was laughed out of the room – including by Senator Graham, during AG’s testimony. Back to Fein – anyone who is familiar with FISA knows that you don’t need a warrant to do overseas surveillance, and the argument that the Congress is trying to limit this is a false straw man. Why does the Administration do this? Fein – to scare the public. Feingold calls this an intentional distortion and that this is Administration misconduct. On to Dean – says that this is not a partisan concern. Can you address why this is a non-partisan concern? Dean says that what concerns him is that the President continually uses signing statements to gut the law – so even with a new amended FISA, the President won’t veto, he’ll simply ignore the law. References the torture amendment. Asks Schmidt about the argument on torture in relation to this FISA argument. Schmidt says the torture arguments were on very shaky legal ground and were awful. But can be distinguished from the FISA arguments. Fein disagrees – says that this is all of one piece for this Administration. Theory that President has advanced on illegal domestic wiretapping also applies to torture, to breaking into one’s home, to opening citizen’s mail without a warrant.

GRAHAM SECOND ROUND: Huckleberry starts with an inaccurate strawman argument. And then says this needs to be an honest debate. (RH: "Hello, hypocrisy hotline…") Then says to Turner that his arguments go to far. Asks about the UCMJ. Turner begins to ramble, says that UCMJ is appropriate, Graham says AG wouldn’t give him a straight answer on this question, cuts off Turner and moves to Fein – asking about limits in Congressional guidance in conduct of war. Asks about enemy combatant distinction under AUMF and Supreme Court decisions and FISA. Fein starts to answer, cut off for question on specific statutory provision. How was 18 USC 4001 end run by Administration? Fein says it doesn’t apply – and Graham continually fails to allow him to complete an answer, keeps interrupting to search for the answer he wants – Fein says Graham is inaccurate in his characterization of the 2002 case.

SPECTER THIRD ROUND: Asks Schmidt about Specter legislation. Schmidt likes it. Asks Casey – he hedges and says it has merit. There have been a number of Constitutional questions – can’t remember FISA figuring into any of them over the years. Asks Schmidt about the 45 day review – Schmidt says that he feels more comfortable with a Court doing the review, not leaving the Administration that much time to do whatever it likes. Too much room for abuse. Casey says he thinks it’s adequate. Specter seems skeptical of that answer – asks about court review. Casey says he doesn’t think that we need to get the Courts involved in every situation – but the court involvement can be of real value. Then asks Turner what he thinks – and asks for a brief answer. Turner thinks it is preferable to go to the FISA court instead of the Congressional committee. Says Specter’s legislation is good, but needs to make exceptions for the President’s inherent authority. (RH: So, a Presidential loophole is preferable for Turner.) Asks Fein about whether there are circumstances where the President has inherent authority? Fein says President is given a 15 day emergency provision initially – that a one year period had been considered and rejected expressly by Congress – that the President’s remedy should he need a longer period would be to go to Congress, which was receptive after 9/11 to making changes – he did not do that.

FEINGOLD THIRD ROUND: Asks Fein about the Bybee torture memo and the arguments for the FISA end-run. Fein says that we don’t know what was said initially, because the Administration has asserted executive privilege to prevent Ashcroft from discussing legal arguments initially asserted with the Judiciary Committee. Asks about statutory basis versus inherent authority. Fein says that Administration has not made a primary argument that inherent authority does not trump FISA – has reverted to statutory argument because they fear that they would lose the inherent authority claim. Specter legislation is all something that the President could already do – the Administration has evaded judicial oversight, Fein says, primarily because they feel that such authority would not be forthcoming because their conduct might be inappropriate. Russ asks Dean about a Glenn Greenwald post on Mitchell’s statements – remarkably similar to what the Administration has said publicly. History has taught us, as Reagan famously said, "Trust but verify." Testing these public statements is absolutely necessary. Dean says that Mitchell relied on King George III’s arguments of inherent authority in making those statements – which Dean reminds everyone is what we fought against in the Revolutionary War, as the Court pointed out to Mitchell at the time.

GRAHAM THIRD ROUND: Asks about the force resolution and the Administration’s arguments via the Hamdi case. Some discussion about Administration overreach on this and checks and balances on this. Graham says you don’t need a warrant to surveil the enemy – but when an American citizen is involved, you need to get a FISA warrant. (RH: Um, isn’t that what FISA already says? I’m just saying…) Spends time talking about his own legislation and why he thinks it is great. Calls FISA a bureaucratic nightmare. Fein says that there is no case law saying that there is no reasonable expectation of privacy for public information – something in a blog, in a public forum, on the outside of an envelope, etc. Asks about warrant issues – Fein says if target is outside the US, then no warrant is necessary at all. FISA does not apply.

GRAHAM SUMMATION: Feels very strongly that censure is inappropriate. Cannot restrict President’s ability to fight a war. But feels that it is appropriate to have some check or balance – via FISA court or otherwise in terms of checks and balances – because the WH needs someone to "check their homework" before sending an FBI into an American citizen’s home without anyone checking whether or not it is appropriate to do so.

FEINGOLD SUMMATION: Addressing the merits is appropriate – and the Administration has not done so appropriately. Feingold says that he feels this is an important moment for the Congress – that he offers this resolution in good faith, because he feels that the Constitutional issues are important to the health of the Republic. He asks for bi-partisan support in this, because he feels that this is important to the nation.

SPECTER SUMMATION: Before doing summation, enters a letter into the record from Cass Sunstein, U. Chicago. – says careful assessment of the underlying facts under the law, and not to take exceptionally rare step of censure.

Starts own statement by quoting news editorials which disagree with Feingold. Says that there must be an assertion of bad faith conduct on the part of the President in order for such a resolution to go forward, in his view, and that the resolution does not have that assertion. Thanks the witnesses. Hearing is concluded.


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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com