No traction on censure, but much theater

Despite the Senate's cool response to Sen. Russell Feingold's calls to censure the president over his unilateral authorization of domestic surveillance, the issue of executive power worries lawmakers on both sides of the aisle, especially for a war with no end in sight.

For the Senate Judiciary Committee, Friday marked the fourth hearing on President Bush's top-secret spying program since it was disclosed in December.

"These are big, big issues," said Judiciary chairman Arlen Specter (R) of Pennsylvania, who said he thought Mr. Bush's action, which the senator sees as a violation of law, would attract more attention than it has.

Besides Senator Feingold, only two Democratic senators - ranking member Patrick Leahy of Vermont and fellow Wisconsinite Herb Kohl - showed up at Friday's hearing to examine the case for censure. Just two Democrats, Sens. Barbara Boxer of California and Tom Harkin of Iowa, have signed on as cosponsors.

For Republicans, the censure resolution is a welcome change of subject from the port-security flap that has roiled GOP ranks on Capitol Hill. GOP leaders urged a quick vote that they are sure to win - just as they did in November with another controversial Democratic step: Rep. John Murtha's call for immediate redeployment of US forces from Iraq. The censure motion, says Senate majority leader Bill Frist, is a sign that Democrats are weak on national security and would try to impeach Bush, if they were to gain control of Congress in midterm elections.

"On censure, senior Democratic leaders are probably right: It's a bad political move. Americans are angry with the president but not ready to bring him down," says Michael O'Hanlon, senior defense analyst at the Brookings Institution.

"But on its legal merits, I'm not sure that Feingold is wrong," he adds. "However, Democrats are spending too much time being against the president and need to spend more time developing a positive vision."

After months of deliberation, House and Senate Democrats released their national security plan last week. It calls for more investments in the military and homeland security, including screening 100 percent of cargo coming into US ports, and energy independence by 2020. But unlike the Murtha proposal, it does not set a timetable for US withdrawal from Iraq. It also echoes calls from the Bush White House and the GOP-controlled Congress that 2006 must be a year of significant transition in Iraq.

Asked at a Monitor breakfast last week what distinguishes the Democrats' plan from current US policy on Iraq, House Democratic leader Nancy Pelosi said: "oversight."

Oversight appears to be the Democrats' leading idea heading into campaign season. "Because the Republican-controlled Congress has not conducted real oversight, and because the attempts this committee has made at oversight have been stonewalled by the administration, we do not know the extent of the administration's domestic spying activities," said Senator Leahy at Friday's hearing.

Three of five legal experts on the panel said the National Security Agency's spying program was narrowly focused and within Bush's constitutional powers. "Congress, in the wake of Vietnam, broke the law - not a statute, but the Constitution - in going after the president's control of foreign intelligence. That was one of many acts that usurped presidential power," said Robert Turner of the Center for National Security Law at the University of Virginia.

In one dramatic moment at the hearing, John Dean, former White House counsel in the Nixon administration, called the Bush team's expansion of presidential powers "even more serious" than that of the Nixon years. "I can tell you, from the other side of Pennsylvania Avenue, that [presidents] take note of that when they're not being called to the mat," he said. "They push the envelope as far as they can."

At stake in the censure resolution is whether Bush violated the 1978 Foreign Intelligence Surveillance Act (FISA) - and misled Congress and the public about it. "If a president has authority to authorize warrantless surveillance without complying with FISA, then "nothing we legislate is worth a hill of beans," says Feingold.

While the Judiciary Committee has called some 20 witnesses to testify on the domestic eavesdropping program, only one - Attorney General Alberto Gonzales - knows how the top-secret program functions, and he declined to say how many Americans it has targeted and how much useful information came from it.