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Censure Hearings, Part I

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NOTE: C-Span began its coverage into the beginning of the hearing – so this begins with where their coverage picks up. Not certain if anyone prior to Hatch may have given an opening statement. Hopefully, transcripts will be posted at some point online, and I will link those up when they are posted.

HATCH OPENING: Concerned about timing and effect of the censure resolution because of war on terror (RH: bringing up the war president card, but not discussing the merits – nice attempt at diversion, Orrin.) Calls Specter’s changes in statute a "noble effort."

SESSIONS OPENING: Says the "national spasm over the NSA wiretaps has had its run." (RH: so because I’m done thinking about it, if the President broke the law, it doesn’t matter.) Then goes on to discuss what may or may not have been done in terms of objections. Goes on about how important surveillance can be in terms of investigating al qaeda, etc. (RH: The fact that no one is arguing this point is clearly lost on Jeff Sessions, who is playing the aggrieved patriot to the hilt this morning. And his whiny voice still grates on me.) "Our President is an honest man. He is a candid man…and the American people know it." Motion for censure is inappropriate because it endangers our soldiers. (RH: Again, nice demoguogery, but doesn’t exactly get to the merits of whether the President, in fact, broke the law. Republicans see this as a means to throw up a smoke screen – but I haven’t heard one legal defense of the President’s actions. We’ll see as the hearing progresses.

GRAHAM OPENING: Expresses understanding of where Feingold is coming from, and says that this is a matter of disagreement as to the law and interpretation. Just like the Clinton impeachment. (RH: The nice Huckleberry persona has shown up for the opening this morning, look out for daggers later.) Says that FISA needs to be strengthened, and says that President would be well served to stop using the "inherent authority" argument, but that legally and militarily would be better served to work with Congress and follow the law. Thinks that censure doesn’t strengthen things, but collaboration will.

CORNYN OPENING: Begins by kissing Specter’s ass. Then takes a poke at the fact that Feingold only has two other Senators backing his motion, and that the rest of the Dems have run for cover. Then takes a poke at John Dean, by referring to him as a convicted felon who is selling a book.

Specter says Dean was Feingold’s selection. And Cornyn can question his credibility if he likes.

Now moving on to the panel.

ROBERT TURNER, OPENING: Says that all Presidents have broken the law in times of war. (RH: Remind me again, has there been a declaration of war? Um…no.) Then moves on to the Article II, inherent authority argument (RH: which I note, Glenn shredded in his C-Span discussion with Prof. Turner.) Argues based on Marbury v. Madison – "no power to control Presidential discretion." (RH: But does not go on to note any subsequent decisions such as Youngstown. I’m just saying.) And then goes on to pull a nutter and demand that the post-Vietnam Congress be censured. (RH: Ooops, well there goes that credibility question. Good selection of a witness, Arlen. *snerk*)

BRUCE FEIN, OPENING: Begins with one of my favorite Franklin quotes: "We have a Republic, if we can keep it." There is no time which can be established when the struggle against terrorism will be diminished – but the checks and balances require very close attention to the various legal theories. "You can lose the Republic on an installment plan every bit as efficiently as you can with a coup d’etat." If Harry Truman could run on a do nothing Congress platform, I see no reason why Congress cannot run on an overreaching President platform. Several questions which call the warrantless surveillance program legality into question. The President attempted to keep the program secret from Congress – sunshine is the best means of preventing abuse of government, as the Church hearings and others have shown throughout history. It has been said that the President could not discuss this with Congress due to source and methods issues – this is a specious argument, according to Fein. The question of reasonableness under the 4th amendment – the fact is that no one knows what the sweeping targeting success may or may not be. You are foreclosed from making a reasonableness assessment when the Presidential action is like a black hole because you are not given appropriate information. No one in Congress interpreted the President’s interpretation of the law – and it smacks of after the fact attempt to CYA. We must respect the rights as enumerated in the Bill of Rights – before a second 9/11 pulls us even further from our system of laws.

LEE CASEY, OPENING: To censure the President over his actions would be a severe miscarriage of justice. Targeted on international communications – says that the dispute over the NSA program is very narrow. As DoJ correctly pointed out, FISA permits surveillance if otherwise authorized by statute – and goes on to make the AUMF argument fronted by Yoo. (RH: Hmmm, wonder why Yoo wasn’t invited as a witness? I think the AUMF argument may raise Huckleberry’s hackles a bit – this could be fun.) The NSA program falls within the President’s inherent authority. Obtaining foreign intelligence information is within the President’s authority. (RH: No on is disputing this, are they? It’s the warrantless nature of the domestic end of things which poses the problem – and no one has addressed why the 72-hour emergency window without a warrant was not followed.)

JOHN DEAN, OPENING: "I probably have more experience than anyone might want in terms of how a President might get on the wrong side of the law." Expansion of Presidential power has been the goal of the Bush/Cheney Presidency from its outset. Refers to Gehrhard’s work – no reason to prevent a censure. Thinks that censure ought to be a matter of institutional pride for the Congress that oversight is necessary. President’s take note when they are not being called to the mat. They take pride in being able to push the limits. Censure, which need not be political, must make clear that Congress is not waiving its power to track these Constitutional issues – he believes censure is the appropriate resolution for this.

JOHN SCHMIDT, OPENING: Former Clinton DoJ official. Any consideration of censure of the President is unwarranted and inappropriate, and undermines the discussion that we ought to be having. Says that President has inherent authority under Article II to do surveillance. Can Congress take that away? He says answer is no. 2002 case takes for granted that President may order foreign surveillance, and that Congress cannot take that away. (Dicta, not a formal ruling.) Refers to Edward Leevy, AG under Ford, established court mechanism to oversee foreign surveillance – says that it was established that Congress could not take away from Presidential powers for foreign surveillance. (RH: I note that this does not address the issue of the 4th Amendment and domestic surveillance.) Says he sees no evidence other than the President authorizing this program in good faith based on legal advice given by DoJ and others in the Administration. Need legislation to address this program, but doesn’t think censure is appropriate.

(Painting of Washington Crossing the Delaware by Emanuel Gottlieb Leutze (b. 1816, Schwabisch Gmünd, d. 1868, Washington) — thought it was an appropriate piece of artwork for this morning’s hearing.)

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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