U.S. Senator Russ Feingold will ask the Senate today to officially censure President Bush 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.
If the Wisconsin Democrat's move were to succeed, Bush would be the first president in 172 years to be so condemned by Congress.
Charging that the President's illegal wiretapping program is in direct violation of the Foreign Intelligence Surveillance Act (FISA) – which makes it a crime to wiretap Americans in the United States without a warrant or a court order -- Feingold argues that Congress cannot avoid facing the fact that fundamental Constitutional issues are at stake.
"The President must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality," says Feingold. "The President's actions, as well as his misleading statements to both Congress and the public about the program, demand a serious response. If Congress does not censure the President, we will be tacitly condoning his actions, and undermining both the separation of powers and the rule of law."
Feingold's motion faces an uphill fight in a Republican-controlled Senate that does not appear to be inclined to make Bush the first president since Andrew Jackson to be censured by Congress. But it does raise the stakes at a point when the Wisconsin senator and civil libertarians have grown frustrated with the failure of Congress to aggressively challenge the administration's penchant for warrantless wiretapping.
Republican senators have proposed rewriting laws to remove barriers to wiretapping, arguing that the president must have flexibility in order to pursue his war on terror.
But Feingold rejects the suggestion that changing the rules after the fact would absolve the president.
"This issue is not about whether the government should be wiretapping terrorists – of course it should, and it can under current law" Feingold said. "But this President and this administration decided to break the law and they have yet to give a convincing explanation of why their actions were necessary, appropriate, or legal. Passing more laws will not change the fact that the President broke the ones already in place and for that, Congress must hold him accountable."
Though the censure procedure is not outlined in the Constitution – as is impeachment – it is well established in the history and traditions of the Congress.
Jackson was censured in 1834 for refusing to cooperate with a Congressional investigation, and there have been many moves over the years to use the procedure to hold president's to account.
In 1998, a then-new online activist group, MoveOn.org, proposed that as an alternative to impeaching Bill Clinton for lying to a grand jury and obstructing justice, the president could be censured. After rejecting impeachment in 1999, senators discussed censuring Clinton but failed to muster the votes to do so.
Last December, U.S. Representative John Conyers, the ranking Democrat on the House Judiciary Committee, introduced separate resolutions to censure President Bush and Vice President Cheney for refusing to cooperate with Congressional investigations into the manipulation and mismanagement of intelligence by the administration when it was lobbying the House and Senate to authorize and support the invasion of Iraq.
Conyers has also introduced a resolution calling for establishment of a select committee to review the actions of administration with regard to the use of pre-war intelligence and to make recommendations regarding impeachment.
While the impeachment process can lead to the removal of a president or vice president from office, a vote to censure Bush would merely condemn him.
Though Feingold says that the president's actions are "in the strike zone" of meeting the definition of an impeachable offense, the senator argues that censuring Bush is the proper and necessary step at this time. "The president has broken the law and, in some way, he must be held accountable," explained the third-term senator who is considering a run for the presidency in 2008.
"Congress has to reassert our system of government, and the cleanest and the most efficient way to do that is to censure the president," said Feingold, who added that he hoped a censure vote would lead Bush to "acknowledge that he did something wrong."
The White House did not respond to Feingold's announcement. But Republican senators rallied to the administration's defense. Senate Majority Leader Bill Frist, R-Tennessee, dismissed the censure move as "a crazy political move" that would weaken the president's hand in a time of war. U.S. Senator John Warner, R-Virginia, accused Feingold of "political grandstanding."
But Feingold's record of challenging the actions of Democrat and Republican administrations may make that charge a tough sell. The ranking Democrat on the Constitution subcommittee of the Senate Judiciary Committee, Feingold has repeatedly clashed with the Bush administration, and before that with the Clinton administration, over separation of powers issues. Indeed, he was the only Democrat who broke party ranks in 1999 to oppose a proposal to dismiss charges against Clinton before the Senate trial on the impeachment charges against the Democratic president had been completed.
An outspoken civil libertarian, the Wisconsin Democrat has a long record of confronting abuses of Constitutional protections by the executive branch.
When it was revealed in December that, despite previous denials by the president and his aides, Bush had repeatedly authorized a secret program by the National Security Agency to listen in on Americans' phone calls, Feingold charged that the spying scheme was indicative of a "pattern of abuse" by a president who was "grabbing too much power."
"We have a system of law. (Bush) just can't make up the law," complained Feingold. "It would turn George Bush not into President George Bush, but King George Bush."
John Nichols, The Nation's Washington correspondent, has covered progressive politics and activism in the United States and abroad for more than a decade. He is currently the editor of the editorial page of Madison, Wisconsin's Capital Times. Nichols is the author of two books: It's the Media, Stupid and Jews for Buchanan.
© 2006 The Nation