Feingold And The Constitution

Adam Cohen writes:

Before the election, Senator Russ] Feingold argued that whoever won should make a priority of rolling back Bush administration policies that eroded constitutional rights and disrupted the careful system of checks and balances. Now that Mr. Obama — a onetime constitutional law professor who made this issue a cause early in the campaign — has won the election, there is both reason for optimism and increased pressure on the president-elect to keep his promises.

. . . Many reforms could be implemented directly by the next president. Mr. Obama could renounce Mr. Bush’s extreme views of executive power, including the notion that in many areas, the president can act as he wants without restraint by Congress or the judiciary. Mr. Obama also could declare his intention not to use presidential signing statements as Mr. Bush did in record numbers to reject parts of bills signed into law.

[MORE . .

Congress also has work to do. Many of the excesses of the last eight years have been the result of Mr. Feingold’s colleagues’ capitulation as much as presidential overreaching. . . . Restoring the rule of law will not be easy, Mr. Feingold concedes. Part of the problem is that it is hard to know how much damage has been done. Many programs, like domestic spying and extraordinary rendition — the secret transfer of detainees to foreign countries where they are harshly interrogated — have operated in the shadows.

. . . Still, Mr. Feingold is convinced that this is a critical moment. If the next president does not reverse the Bush administration’s doctrines, he fears that they will no longer simply be the policies of one extremist president. The danger is that they will be the nation’s new understanding of the Constitution.

We need Russ Feingold and we need to support him.

By Big Tent Democrat, speaking for me only

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    Feingold for Supreme Court! (5.00 / 1) (#1)
    by Aqua Blue on Fri Nov 14, 2008 at 02:13:46 PM EST
    Such an ethical man.   I just love him.

    Hopefully, he will have great influence on the Obama administration and as an appointed Justice, he would have great influence on the nation and the world.

    Keep Feingold in the Senate (none / 0) (#29)
    by cal1942 on Sat Nov 15, 2008 at 12:28:11 AM EST
    Feingold will be 56 this coming March.

    Don't appoint anyone older than Roberts, born 1956, the youngest member of the court.


    Agree completely (none / 0) (#35)
    by NMvoiceofreason on Sun Nov 16, 2008 at 01:39:19 PM EST
    And pass 13 or 15 member restructuring.

    Actually (none / 0) (#36)
    by cal1942 on Sun Nov 16, 2008 at 03:44:18 PM EST
    Pretty good.

    There's no set number of Supreme Court Justices, we've had as many as 10.

    Federal judges can also be added to federal district and circuit courts.


    Two words married forever. (5.00 / 4) (#2)
    by blogtopus on Fri Nov 14, 2008 at 02:17:06 PM EST

    Two More Words (none / 0) (#25)
    by Pepe on Fri Nov 14, 2008 at 06:10:43 PM EST

    And Two More



    Nope (none / 0) (#30)
    by BrassTacks on Sat Nov 15, 2008 at 01:56:39 AM EST
    I don't see Obama doing anything that might cut into his own power.  Maybe I am wrong, but I don't see him doing anything like that.

    Inaugural parade (5.00 / 1) (#4)
    by Ben Masel on Fri Nov 14, 2008 at 02:34:12 PM EST
    I'm bringing an enormous "STOP GOVERNMENT SPYING" banner, headed to the NW corner of 9th and Pennsylvania.

    Presuming the protocols of the last couple inaugurals remain, poles aren't allowed, so it'll take a bunch of hands to keep it aloft. Space first vcome first served, arrive way early so we can stake out the front row.

    Facebook Event page

    Why not (none / 0) (#7)
    by scribe on Fri Nov 14, 2008 at 03:05:33 PM EST
    some cable ties, assuming there's a fence or sawhorses to tie it to?

    Or are those verboten, too?


    Doubt there's anything to tie to (none / 0) (#8)
    by Ben Masel on Fri Nov 14, 2008 at 03:11:12 PM EST
    At least there wasn't when I brought banners to the same spot for the '89 and '01 Inaugurals.

    We need to be careful here (5.00 / 3) (#6)
    by scribe on Fri Nov 14, 2008 at 02:37:23 PM EST
    in saying that the policies can be reversed by Obama merely declaring them to be.

    First, a substantial body of precedent (big enough to be both noteworthy and worrisome) has been built over the last 8 years both in the courts and out of them applying Bush/Cheney's dictatorial conception of the Presidency's powers.  Those precedents need to be removed and invalidated as much as - if not more than - the policies themselves.  They are like cleaning poison ivy out of your garden.  If you don't get the roots but merely cut down what's above ground, it will grow back.  When it grows back, it is often more vigorous than before.

    For example - just one of them - look at the assertion which popped up yesterday, that Bushie might be able to successfully assert Executive privilege even after he leaves office.  That was the product of a hasty tactical approach by Harry Truman, post-leaving office, when he did not want to testify to the Republicans in Congress about something or other in the handling of the Korean War.  It flew.  Then, when Nixon used it post-resignation, everyone (Truman's lawyers included) recoiled.  Truman's lawyer (still alive now) recounted that his reaction was "My God, what have we created?"

    So we need to go carefully and with a solid plan.

    Second, and as (if not more) importantly, if we say Obama can just declare the Bush/Cheney doctrines invalid and be done with it, we wind up actually validating the animating principles of the Unitary Executive which Bush, Cheney and their enablers have posited and worked in.  That is, that the President can interpret the Constitution and laws as he sees fit, obey or disobey such statutes as he sees fit, and all the rest.  All those things which so shocked Sen. Whitehouse when he got to read some of the still-secret memoranda Bushie's OLC gave him.

    So, I agree Feingold's a Hero of the Constitution and should get a big part of cleaning up the Bush/Cheney dictatorships' mess.  But this is seriously toxic waste we're working to clean up here, and we have to work carefully both to clean up all of it, and not make the future worse from how we get it cleaned up.

    Eyes open and with a plan.  OK?

    Step one of making a plan:  finding out what the lay of the land actually is.  And that's where immediate disclosure of the secret memos and projects can do the most good.  We all saw how assiduously the web (h/t TPM) was able to digest, analyze and organize all the documents that got dumped in the initial stages of the US Attorneys scandal (which, I suggest, is why the document dumps stopped).  It's time for that kind of effort again.

    IF nothing else, it will put a lot of lawyers and law professors to work productive of liberty and protective of the Constitution.

    I am so afraid (none / 0) (#31)
    by NMvoiceofreason on Sun Nov 16, 2008 at 01:11:18 PM EST
    that your ideas are naive and quite impossible. I say this because I favor them strongly. But Barack Obama is not an Alan Dershowitz style of attorney, eager to ague whether sales tax on a meal is constitutionally permissible. His style is conciliation, and he will have little inclination to revisit the sins of the past while he is trying to save the country from the multiple simultaneous disasters he and we face thanks to the maladminstration of the last 8 years.

    The only hope I see is to file a civil suit RICO action under 18 USC 1964, seeking to get an injunction against the Republican party for their illegal activities.

    The only way to get rational decisions from the SCOTRP (Supreme Court of the Republican Party) is to have Congress pass a 13 or 15 member "court packing" scheme. The real reason to do this is that they (like most judges) are lazy, and don't want to do the work. They only hear 80 or so cases per year out of 3000 to 5000 cases filed. If you think that automotive line workers can only work on 1% of the parts sent to them for assembly, then you believe they are doing the correct thing, because no member of the profession is any better than the lowliest line worker. Hold argument and do the work that the Courts of Appeal have been forced to do for you, SCOTRP, and guarantee the rule of law by ACTUALLY HEARING CASES.

    Second, you need to strip the principle that the opinion of the AG matters. Right now, it has the force of law in areas where the courts have not ruled. This presumption had merit in the days when idealogues did not bend the legal system to their will. Otherwise the next Republican takeover will be worse.

    Third, we need to terminate the idea that any of the rights of office obtain after leaving the office. Can President Clinton declare nuclear war? Should we leave such powers in Bush's hands? If all the line of sucession enumerated in the Constitution  is dead, then we MIGHT think about returning them to office, but they would have no powers whatsoever until they did. This idea that Bush and Cheney came up with that they get to approve or disapprove anything regarding their offices, even after they left office, is simply absurd and is a monstrosity that must be removed. We don't elect monarchs, we elect citizens that return to being citizens.

    Finally, there is no plan. No one is going to do anything about it. Commissions will be formed to look into it, as toothless as the 9/11 commission. Everything will be swept under the rug, because parties and their privileges matter more than our liberty. And the next Republican majority will take over as a fascist monarchy/dictatorship, with all of their legal and illegal tools intact.

    All that is necessary for the forces of evil to triumph in the world is for enough good lawyers to do nothing.


    Dissolve the Republican party (none / 0) (#32)
    by NMvoiceofreason on Sun Nov 16, 2008 at 01:13:20 PM EST
    and seize their assets for restitution to their victims. If you can't make pattern and practice from the last eight years, maybe you should not be practicing law.

    Renouncing power... (5.00 / 1) (#22)
    by DocBradd on Fri Nov 14, 2008 at 05:15:29 PM EST
    I appreciate Feingold, for my money he is the best of the senate. I don't think that Obama is big enough to do the clean up of the Augean stables that he's inherited, much as I wish that he would. He could surprise me, but I see him as way to conventional in his thinking to do something as radical as return us to the rule of law by giving up power accrued by Bush - he might need it someday. He brags of being a constitutional scholar - but he voted for FISA - I wonder how he reconciles that vote with his understanding of the constitution. I voted for him because the alternative was unbelievable. I didn't vote for him because I thought he would really do the job that needs doing. I do wish that there was some way to get the senate to do its job as defined under the constitution, that would be a beginning, but I fear that will not happen.

    Oh, BTD - what would it take to get you to drop the "speaking for me only" line. I guess it bugs me as no one ever speaks for others. Are you not allowed to express an opinion at possible variance with the other bloggers here without labeling it so? How peculiar. I don't see you as being at variance with the others anyway.  Oh well.

    Brad davis, Ph.D.

    It is important (none / 0) (#33)
    by NMvoiceofreason on Sun Nov 16, 2008 at 01:18:32 PM EST
    to identify that we are individuals. I don't agree with everything BTD says, even though I agree with most of it, and I'm quite sure he agrees with much less of what I had said here.

    TalkLeft is a web site. It is not a party. It is not a movement. It is bright educated people talking about what is wrong with the law and our country, although it intends to do nothing to fix it (speaking for myself only), other than whatever legal process we may each be involved in. While we talk about law, we are not issuing legal opinions. Were those things to change, then the legal basis for TalkLeft might need to change also.

    Speaking for myself only.


    Are we allowed to talk about Brennan now? (5.00 / 1) (#24)
    by lilburro on Fri Nov 14, 2008 at 06:08:20 PM EST
    See NYT article.

    Name: John O. Brennan

    Being considered for: Director of national intelligence or the Central Intelligence Agency.

    Carries as baggage: As a senior adviser to Mr. Tenet in 2002, Mr. Brennan was present at the creation of the C.I.A.'s controversial detention and interrogation program, which Mr. Obama has strongly criticized. But Mr. Brennan has distanced himself from the program, and told The Washington Times last month that interrogation methods like waterboarding are "not going to be allowed under an Obama presidency." During a confirmation hearing, he could face criticism by former C.I.A. officers that he was too risk averse in the hunt for Osama bin Laden while he served as station chief in Saudi Arabia.

    Brennan 2: (5.00 / 1) (#26)
    by lilburro on Fri Nov 14, 2008 at 06:10:58 PM EST
    Baltimore Sun, Melvin A. Goodman :

    Instead of placing the transition process under a seasoned professional such as Mr. Scowcroft, the Obama team has turned to discredited cronies of the Tenet era. Mr. Brennan, as chief of staff and deputy executive director under Mr. Tenet, was involved in decisions to conduct torture and abuse of suspected terrorists and to render suspected individuals to foreign intelligence services that conducted their own torture and abuse. Mr. Brennan had risen through the analytic ranks and should have known that analytic standards were being ignored in Mr. Tenet's CIA. He was also an active defender of the illegal program of warrantless eavesdropping, implemented at the National Security Agency under the leadership of Mr. Hayden, then director of NSA.


    Mr. Obama will not be able to change the culture of the intelligence community and restore the moral compass of the CIA unless there is a full understanding and repudiation of the operational and analytical crimes committed in the Tenet era. If Mr. Obama genuinely wants to roll back the misdeeds of Vice President Dick Cheney, restore the rule of law at the CIA and create the change that Americans want and can believe in, he should not be relying for advice on the senior officials who endorsed these shameful actions.

    From email to transition team (none / 0) (#34)
    by NMvoiceofreason on Sun Nov 16, 2008 at 01:21:12 PM EST
    Three principles important during the transition:
    1. To defeat terrorism, avoid becoming the terrorists ourselves
    2. The Rule of Law is important
    3. Exposure to complicity in the crimes of others should be avoided

    Secretary Gates and others in the intelligence community are parties to 2 million felonies under 50 USC 1809 and violations of the Geneva Conventions and the War Crimes Act. Simply providing a commission to "look into it" is insufficient. The International Court is quite likely to ask for the extradition of highly placed members of the Bush Administration. The AG has repeated the violations of the Hatch act in attempting to supress voter turnout and prompt AUSA's to prosecute "voter fraud".

    Barack Obama is a professor of Constitutional Law. Ask him whether continuing to support someone you know is being indicted on crimes you are aware of them committing constitutes aiding and abetting after the fact.

    Appoint qualified replacements (like Wesley Clark or Colin Powell or Gen. Shinseki) as soon as possible and have them ready to take over the office on Jan 20th. Then have them transfer all the evidence to your AG (hopefully Janet Napolitano). Preserve the evidence and prosecute the offenders. Close Guantanamo THAT DAY and transfer the accused to SuperMax custody, while releasing those the courts have ordered released. Don't just give it a head fake, show that the rule of law really has come back to America.

    As for the desire not to offend anyone on the Republican side, and sweep things under the rug, remember that we are one man and one vote away from having become a fascist state (which Cheney could have concluded at any time by declaring martial law). The mechanisms must be repaired and the offenders must be prosecuted. Ask for leniency in sentencing, if you wish, but do not abandon the rule of law. If you do, you may meet with temporary success, but America will die. If the constitution can be defiled like this without recourse to the legal process to correct it, then American Democracy is dead already.

    I worked for Barack. Thank you for bringing me my country back. Now please show me that my son will live to see it too.


    Don't hold your breath, Russ (4.25 / 4) (#3)
    by imhotep on Fri Nov 14, 2008 at 02:25:40 PM EST
    He voted for FISA and has Brennan and Rahm as  advisors.

    I'm just a guy, (none / 0) (#5)
    by bocajeff on Fri Nov 14, 2008 at 02:36:30 PM EST
    so I don't understand somethings about separation of powers. If the President does something and it's unconstitutional then it can go to the Supreme Court for reversal, no? So, by definition, any president can not be above the law. Now we don't have to agree with every decision by the Supremes, but that doesn't mean that if they wrong something then is unconstitutional, no?

    In other words, Bush can say all wants about executive powers, unitary presidency, signing statements, FISA, etc..., but if the court rules against him then it doesn't much matter.

    The Supreme Court only (5.00 / 2) (#13)
    by Demi Moaned on Fri Nov 14, 2008 at 03:58:50 PM EST
    ... reviews decisions made by lower courts. And lower courts only rule on cases where there is prosecution (i.e., the executive powers charge individuals with violations of the law) or litigation (groups or individuals seeking relief from damages sustained or acting to prevent injurious behavior).

    Clearly, the executive is unlikely to prosecute itself for violating the law. And where litigation is concerned, there are difficult questions of standing (roughly speaking, "What business is it of yours?").

    It is actually Congress that has broad powers to challenge to Executive wrongdoing on its own initiative. Unfortunately, recent Congresses have been lax (to say the least) in exercising these powers.

    Failing that, a new President can of his own initiative renounce the perceived usurpations of his predecessor. That's what we're talking about here.


    A "5" for a clear explanation (5.00 / 1) (#17)
    by Cream City on Fri Nov 14, 2008 at 04:28:31 PM EST
    that I may just print out for college history students struggling to figure out the role of the Supreme Court -- a question that keeps coming up (as, being young, they wonder why it didn't do more!  why didn't it abolish world hunger! and create whirled peas! :-).  I keep explaining its role, but not as well as do you, I guess.  Plus, yes, they're also getting confused by court rulings vs. executive orders, not surprisingly with the recent rise in the latter, and then I explain that it's not for the courts but for Congress. . . .   And I fear that, in the end, they're getting the impression that the Supremes don't do much!

    So -- thanks.  And may I also note, for anyone on school boards, that it seems that the worst time to require civics classes is in middle school.  I know they had civics classes, but the evidence suggests that nothing crucial ought to be taught during the most hormonally chaotic years. :-)  


    OK, folks (none / 0) (#9)
    by scribe on Fri Nov 14, 2008 at 03:13:24 PM EST
    let's all chew on this.

    Here's the list of the team leaders Obama's appointed for the transition, to review DoJ, Civil Rights, Legal Services Corp., and the FEC.

    Thoughts?  (Other than "there are no criminal defense lawyers and no plaintiff's PI lawyers here".)

    I like that one of them appears to be a professor of legal ethics (they call it "professional practice").

    Somehow, these choices (5.00 / 1) (#11)
    by scribe on Fri Nov 14, 2008 at 03:20:54 PM EST
    (Scroll all the way down) for review of the intelligence community do not inspire:  Brennan and the former head of Sovereign Risk Management at Lehman Brothers.

    Both of them were inside CIA when the Bushco torture regime got its start, too.


    Most intelligence guys (none / 0) (#12)
    by flyerhawk on Fri Nov 14, 2008 at 03:33:41 PM EST
    are going to have deep ties to the CIA or some other US intelligence agency.  

    And everyone in the intelligence community ... (5.00 / 1) (#14)
    by Robot Porter on Fri Nov 14, 2008 at 04:02:49 PM EST
    was a vocal advocate of torture and illegal wiretapping?

    C'mon, Fly, even you know that isn't true!


    You guys keep telling me that (none / 0) (#15)
    by flyerhawk on Fri Nov 14, 2008 at 04:11:58 PM EST
    BTD pointed to a Glenn Greenwald article which pointed to a New Yorker article that referenced John Brennan one time in an matter unrelated to this.

    Let's see if we can find some direct quotes from John Brennan...

    In the second half of the segment, Smith talked with former CIA official, John Brennan to discuss specifics of the water boarding tactics and their effectiveness. After showing video of simulated water boarding, Smith asked Brennan, "Is that torture?" Brennan responded by saying, "I think it is, certainly, subjecting an individual to severe pain and suffer, which is the classic definition of torture. And I believe, quite frankly, it's inconsistent with American values and it's something that should be prohibited.

    As for wiretapping I suspect that you would spend quite a bit of time searching for senior CIA folks that are against FISA.  

    You don't allow the CIA to define our civil rights.  Their responsibilities are in direct conflict with them.


    I don't know what ... (none / 0) (#16)
    by Robot Porter on Fri Nov 14, 2008 at 04:19:05 PM EST
    you base this statement on:

    As for wiretapping I suspect that you would spend quite a bit of time searching for senior CIA folks that are against FISA.  

    It's utter nonsense.


    makes me wonder who's... (none / 0) (#18)
    by Salo on Fri Nov 14, 2008 at 04:31:29 PM EST
    ...actually been posting for Obama on the nets. Who indeed.

    You guys crack me up (none / 0) (#21)
    by flyerhawk on Fri Nov 14, 2008 at 05:12:06 PM EST
    If you were to poll New York City cops whether they were in favor of gun control, how many would say they were not?  

    Course you could link to the notable CIA professionals who oppose FISA on civil rights grounds.


    Because (none / 0) (#20)
    by flyerhawk on Fri Nov 14, 2008 at 04:56:39 PM EST
    you are so familiar with people in the intelligence community?  

    I base it on personal experience with people I know in the intelligence community.  I base it on my experience in the military, working with them.  

    What do you base your opinions that FISA is a contentious issue in the I.C.?


    That interview (none / 0) (#23)
    by lilburro on Fri Nov 14, 2008 at 06:03:23 PM EST
    is much less clear about Brennan and waterboarding ...

    SMITH: I want to play some tape, because people have been hearing water boarding, water boarding, water boarding, for a week now. We just showed a little tape from a film. This is actual -- a former special forces member, who now a reporter, said I want to show people what this is like. What happens in water boarding?

    BRENNAN: Well, water boarding is a tactic, has been discussed, been used for several hundreds of years. And the individual usually is strapped to a board. His hands and legs are bound, and his head is lower than his feet. And then a constant stream of water is put over his face, his nose and his mouth. And it simulates drowning, and it also induces a gag reflex on an individual, which causes them to want to have that procedure stopped.

    SMITH: Right. This is a sort of mild, and as we talked earlier almost amateurish version. The person's head is usually at a much greater angle and an almost more continuous flow of water, so the sensation is very immediate that the person thinks they're going to drown.

    BRENNAN: Yes, and a sort of classic water boarding, and I'm not saying the CIA has ever used water boarding, but there would be a constant stream of water and a volume of water that is going to be continuous. Here they stop in between on occasions.

    SMITH: Right, right.

    BRENNAN: But it's something the individual wants to stop at any cost.

    SMITH: Is that torture?

    BRENNAN: I think it is, certainly, subjecting an individual to severe pain and suffer, which is the classic definition of torture.  And I believe, quite frankly, it's inconsistent with American values and it's something that should be prohibited.  But I think Judge Mukasey is in a very difficult position right now, as the attorney general nominee, to be asked whether or not this is torture and if torture then is unconstitutional or illegal, they're asking whether or not water boarding is illegal and whether or not the individuals, which includes the president and others, if it was used, who authorized and actually used this type of procedure, may be subject to some type of judicial action.

    SMITH: You know, this all becomes such a giant issue because the president has gone on record so many times saying the United States does not torture. If we acknowledge that this kind of activity goes on, you know, what does that mean, exactly I guess?

    BRENNAN: Well, the CIA has acknowledged that it has detained about 100 terrorists since 9/11, and about a third of them have been subjected to what the CIA refers to as "enhanced interrogation tactics." And only a small proportion of those have, in fact, been subjected to the most serious types of enhanced procedures.

    SMITH: And you say some of this has born fruit.

    BRENNAN: There has been a lot of information that has come out from these interrogation procedures that the agency has, in fact, used against the real hardcore terrorists. It has saved lives. And let's not forget, these are hardened terrorists who have been responsible for 9/11, who have shown no remorse at all for the death of 3,000 innocents.

    SHORT BRENNAN:  That is waterboarding, I'm not saying we do it, but it should be prohibited, but nobody should be punished for using it, and hey it helped us and our enemies are monsters anyway.

    I don't think this is the guy who should be trusted with the future of American intelligence.  And I am sure this is just the tip of the iceberg.  No thanks.


    What do you expect (none / 0) (#27)
    by flyerhawk on Fri Nov 14, 2008 at 06:55:27 PM EST
    a CIA guy to say?  Waterboarding is evil and our guys did it and the should be punished?  You really believe that any CIA official would say that?  

    This is why you don't let the CIA set these policies.

    I ask this again.  Who would you like to see as the NCI or DCI?


    Rand Beers (none / 0) (#28)
    by lilburro on Fri Nov 14, 2008 at 08:10:15 PM EST
    is also involved in Obama's transition team (for homeland security).  He is better on FISA and has been a much stronger opponent of torture.  

    HuffPo:  Beers On Progressive National Security.

    I also admire that he quit his National Security Council job because of his disagreement with the government's direction.  

    I don't know if he is the best, but I think he is better.

    From his National Security Network mission statement:

    * We will faithfully honor the letter and the spirit of our Constitution. We will never sanction torture, and we will never tolerate spying on law-abiding citizens.

    Beers would be an improvement.


    It's hard to want to give power back (none / 0) (#10)
    by magster on Fri Nov 14, 2008 at 03:14:29 PM EST
    to Congress when they are so ineffective.  Nonetheless, it needs to be done.

    Right (none / 0) (#19)
    by DancingOpossum on Fri Nov 14, 2008 at 04:34:33 PM EST
    Which is why, much as Feingold would be great on SCOTUS, we really need him to stay in Congress.