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Thursday, March 16, 2006

Why would Democrats cower when the president is at 33%?

Feingold and the press Q&A

QUESTION: Some of the senators who share your skepticism about
the administration's legal arguments have made a couple of arguments
in response to your resolution -- one that we still don't know enough
about the program to make a definitive legal judgment about it; and,
two, ultimately the courts are going to decide whether it's legal or
not; they're going to decide whether there's a constitutional override
on FISA that would justify or sustain the surveillance program.

Can you respond to those two arguments?

FEINGOLD: Sure. Well, first of all, I don't think there will
ever be any additional information that is going to make this more
legal. There are only three ways in which this can be legal.

One is if it's within the FISA law -- which, essentially, the
administration concedes it is not; secondly, if somehow we authorized
this under the Afghanistan resolution -- that's been laughed out of
the halls of Congress.

So all that's left is some people saying: Well, is there a space
here with regard to the inherent power of the president that somehow
would allow an exclusive statute -- a statute that says, "This is the
only way you can do this wiretapping" -- to be overridden by some
inherent executive power.

I think that we already know that those are the legal issues;
that there's no dispute about those being the legal issues. Further
investigation of exactly what the program is will not change that.

And so I recognize that of course there should be more
investigations. At a minimum, every member of the Intelligence
Committee should be informed of what's going on because that's
relevant to how we get this right in terms of policy, whether there
need to be any changes.

But the legal aspect is, I think, already pretty clear. Whether
or not it will ever go to the courts -- well, you heard me ask Judge
now Justice Alito. I asked him whether the Supreme Court would handle
this and what he might do.

He said, "Well, maybe we can't take it up."

Maybe because of the justiciability and political
question doctrine, we can't take it up.

So we're going to wait for years and years to have the third
question -- which I think is a very weak argument -- adjudicated maybe
by the Supreme Court, while the first two are slam dunks.

QUESTION: What is your strategy for attaching this resolution to
a piece of legislation so there would be a vote on this?

And from your conversations with your Democratic colleagues, why
are they reluctant to vote on this?

FEINGOLD: Well, my strategy is to follow the normal legislative
process, if that's possible.

Chairman Specter intends to hold a hearing on the bill. It is in
his committee. I thought that was a good thing, to refer it to the
Judiciary Committee. Presumably, there would be a hearing because it
is a fair and different question to ask whether censure is the right
step, and that does need to be heard.

Hopefully, that hearing will be held in a timely manner, and then
I would hope that the bill, or the issue would be voted on in
committee, and if it can get through committee, voted on in the floor.
If that process is truncated or not allowed, then I may consider other

But at this point -- I'm not the one who wanted to have the vote
in 10 minutes the other day. This is a big deal. And it does require
the opportunity for people to think about this over time in the
context of the history of this country, the use of censure, and what's
been done here.

So my intention would be to follow the process, if at all

What was the second part, I'm sorry?

QUESTION: From your conversations with your Democratic
colleagues, is there any inkling you have as to why they are reluctant
to vote on this?

FEINGOLD: Well, I think -- you know, many in my caucus don't
want to talk about this because, rightly, they want to point out the
Bush administration's failures with regard to national security and
how we can do better.

And I think that's absolutely something we should be focusing on,
all the way from Dubai, to people escaping from Yemen who were
involved in the USS Cole, to not getting Osama bin Laden, to not
getting al-Zarqawi, and, of course, the failures in terms of homeland
security. That's a very important message.

FEINGOLD: But what I think some of my colleagues are missing is
that this actually fits in perfectly with this.

How did this program get revealed? This program was revealed
because the administration recklessly and arrogantly set up an illegal
program which apparently -- from published reports -- led people
within the administration to reveal its illegality.

So who's responsible for its revelation? Yes, the New York
Times. But more fundamentally, who caused this mess? Those who did
not want to go through the normal process and the normal law.

So, to me, this is an example of incompetence. This is an
example of not handling the war against terror very well.

In fact, this attitude undermines the fight against terrorism,
because there are many people out there -- whether people want to
admit it or not -- many people in America who are fearing their own

If you fear your own government, the ability of us all to pull
together against the terrorist threat is weakened.

So I think this is easily part of the message that Democrats
should be conveying. I think it fits in.

QUESTION: Have any of your colleagues urged you -- have any of
your Democratic colleagues urged you -- to withdraw the censure

And the second part of the question is: Conservatives almost
seem giddy about your introduction of this resolution, thinking that
they can score more political points than Democrats can.

FEINGOLD: Sometimes when people are really having a lot of
trouble, giddiness comes very easily. As far as I know -- have you
seen any surge in the president's numbers since I made this
announcement? I believe no such thing is happening.

No senator has come to me and said, "Russ, withdraw the
resolution." A couple have said, "Bad idea." A couple...

QUESTION: Democrats?

FEINGOLD: Yes. A couple have said, "Excellent." Senator Harkin
said he was proud to be the first co-sponsor yesterday -- Tom Harkin.
Others have said to me, "I'm not ready to sign on, but I really like

And Lincoln Chafee said the following -- he said he did not
currently support the proposal by Senator Russell Feingold to formally
censure Bush for authorizing the wiretapping program. Everything
should occur in steps.

But he agreed that the wiretapping program -- part of a broader
war on terrorism -- was illegal and he welcomed the public debate
prompted by Feingold's censure resolution.

You just don't hear it -- any outrage or questioning of it, or
even support. That's a Republican senator who's up for re-election
who's saying exactly why I brought this up, which is that it was off
the radar screen -- the illegality of it -- and now it's back on the
radar screen and you have people like Lincoln Chafee talking about it.

QUESTION: How many co-sponsors do you have at this point?

FEINGOLD: So far we have one. And, you know, given some other
bills I've introduced, we're way ahead.


Thanks so much.

QUESTION: Sir, just following up on what they were asking: the
flow of this story this week seems to be that Democrats are running
from you and now the conservatives, I guess, are happy about it -- the
(inaudible) is quoted that way.

Was that your intention? And are you sorry you did that? Are
you sorry that you set off a chain of events?

But I'm curious why you're even holding this news conference
right now. Is this to sort of defend what you've triggered here?

FEINGOLD: Well, I'm struck by the fact that, when Senator
Schumer has an issue, he holds a press conference every 10 minutes.


And I love him.

FEINGOLD: It seems to me appropriate, when the spin machines are
out there and people are using various language, to come out and
reiterate my reasons for doing this.

I think that the press decided immediately that somehow this was
a bad thing for Democrats and a good thing for conservatives. The
facts don't bear it out. You don't have the polls to prove it. The
way my colleagues are responding to me suggests to me they're thinking
about this, that they feel that there has to be some accountability.

So the instant decision about what the story is, actually, I
think is going to backfire on those who made up the story. I don't
get the feeling that I had on Monday about this -- yes, people were
concerned -- I'm not getting that.

And if the right wing really believes in this country that --
Rush Limbaugh and others -- that they can somehow turn the president's
reputation around by saying, "You're darn right he violated the law,
and it's a good thing," I think they're just as confused as they are
about their Iraq politics. People aren't buying it anymore.

So not only do I not regret it, I felt an absolute obligation to
do it.

Of course, I want to minimize any problems that would cause for
the Democrats. But, in the long run, I am convinced this will be part
of a broader message that an administration that is incompetent, that
is dishonest and doesn't respect the law basically means that we
should have a different kind of administration in the future.

QUESTION: You said "minimize problems." What kind of problems
might you anticipate in this?

FEINGOLD: You know, some have said to me that this will be a
difficult issue for some of our candidates who are running. And to
them I say, just say what you believe. If you think it's appropriate
to censure the president, say so; if not, say no. I don't think it
should be a thing that is required of Democrats.

I do think that what it has stimulated -- and this is another
very positive thing -- is a lot of Democrats are coming to me and
saying, "Well, what would happen if we did a different kind of
resolution that talked about the illegality and expressed it in
another way?" And, you know, I think that's constructive.

In fact, in the history of these historical censures -- there has
been only one occasion where censure was passed -- but in other cases,
such as, I guess, Buchanan and Polk, other resolutions were passed
that, in effect, criticized or rebuked some executive action without
going the whole route.

See, this is what I want. I want people to be talking about ways
to bring accountability whether censure succeeds or not.

QUESTION: Senator, this resolution, if it were passed, would
have no legal effect.


QUESTION: So the only thing that would affect the NSA program,
if it's illegal, is to cut off the funding? You don't support that,
do you?

FEINGOLD: Well, there are several things that could affect the
program. First of all, one would hope, if this passes, that the
president would acknowledge what Congress has said and would bring the
program within FISA, which is what he should do.

Another approach, of course, is the legal system, is hoping that
we could get some kind of a court order and a response in the legal
system ordering the president to come within the law.

So I don't think that necessarily the idea of cutting off funding
-- even cutting off funding, how are you going to enforce that? If
the president has inherent power, he'll just shift some money around.
He'll just keep doing it. I mean, that's the problem with this
doctrine. If the president isn't going to acknowledge that a law we
passed, such as FISA, binds him, why should the cutting off of funding
affect him?

QUESTION: Senator, for those who are your critics who would
liken this or they talk about your central resolution in the same
breath that they talk about impeachment, and just say this is nothing
but one step ahead of impeachment. How do you counter that,
especially when they're using it as a weapon before the midterms to
say: The Democrats get in power, you're going to see impeachment.

FEINGOLD: Clearly, I chose to pursue censure rather than
impeachment, certainly at this point, because I believe at this point
it's a way to help us positively resolve this issue.

In other words, without getting the country in the middle of a
huge problem, like we had with the attempted Clinton impeachment, we
have a passing of a resolution of censure, and hopefully the president
would acknowledge it and say that he maybe went too far, and we would
be able to move forward and stop worrying about this and get a pledge
from the president that he's going to come within the law or make
proposals to change the law to allow it.

I think this actually is in the area of an impeachable offense.
I think it is right in the strike zone of what the founding fathers
thought about when they talked about high crimes and misdemeanors.

But the Constitution does not require us to go down that road,
and I hope that in a sense I'm a voice of moderation on this point,
where I'm saying it may not be good for the country to do this, it may
not be good for the country in a time of war to try to remove the
president from office, even though he's surely done something wrong.

But what we can't do is just ignore the wrongful conduct. So
this is a reasonable road. And anybody who argues this is a sort of
prelude to impeachment forgets the history of the Clinton impeachment,
where censure was offered by some, especially Democrats. Senator
Feinstein offered a censure resolution of President Clinton after the
impeachment trial as an alternative because impeachment was regarded
by many as too drastic of a step.

QUESTION: You talk about your Democratic colleagues sort of
cowering about this issue. (OFF-MIKE) You look at all the polls
getting consistently worse and the sort of frozen response. It's not
like Democrats are against the idea, it's like they don't really even
know how to express themselves on the issue.

Why is that? Is one of the ideas here to break through that...


QUESTION: ... and try to get people more assertive?

FEINGOLD: When I used that word, which is a strong word, I used
it in the form of a question: Why would people cower at a time when
the president's numbers are so low? That was the context.

And it is puzzling to me, after having sat in that caucus in
October 2002 and hearing senators express enormous anxieties about
this Iraq war, to see them respond to presidential intimidation in a
way that caused, I think, a number of senators to vote for this war
who really didn't think it was a good idea.

There is a tendency in our party, unfortunately, that we have to
break through, to be afraid of taking a strong stand and stick to it.

What the American people want are people that believe in
something. And so when we got out there and are strong on trying to
have some kind of a timetable to end the Iraq war, that was a positive
for us. But then we backed off.

When we got strong on the USA Patriot Act last fall, that was a
strong moment for us. We looked like we believed in something. But
then too many of my colleagues caved.

This is the same kind of thing. There were enormous
condemnations of this NSA program, not just from Democrats, but from
Republicans. Almost everybody said, this is really pretty outrageous.
But there's this tendency, as soon as the president and the spin
machine comes out and says, "This mean you folks are soft on
terrorism," we let them intimidate us.

And I think that just shows us to be weak rather than a party
that's ready to govern the country. And we need to show that we're
strong. This is a way to do it.

QUESTION: Senator, you said in your release that if the
committee fails to consider the resolution in reasonable time then you
will ask for a vote. Well, how much is "reasonable time"? And you
said you will in the statement, but then a few minutes ago, you said
you may. Will you or will you not?

FEINGOLD: You know, I don't know exactly how long I consider to
be reasonable. I think that it'll appear based on events and it'll be
related to what's going on in terms of our getting information about
the program and whether this whole process is moving forward.

But, you know, as far as I'm concerned, if we held a hearing in
two weeks, we could have the vote two weeks after that. Maybe if they
said it had to wait until a couple more bills were brought up, we'd
wait longer.

You know, I would hope within a couple of months or months rather
than 10 months. But I think it's the kind of thing, in fairness to my
colleagues and the process, that I should do at the appropriate time.

QUESTION: How come you decided to issue the censure on the NSA
spying, as opposed to the war, the misleading evidence of the war?

FEINGOLD: That's a really important point. I have always noted
that many people wanted this administration criticized or even
censured for the misleading arguments for the Iraq war and other

And I have resisted that, even though I really do agree that much
of that conduct has been terrible and very disturbing.

This is not about whether we were misled into a war; this is
about our system of government. This is about the rule of law. This
is a very specific, disturbing attempt to change the structure of our
government permanently.

That is the rare kind of situation that would lead to censure, in
my view.

QUESTION: Do you see any chance whatsoever that your resolution
would be passed by this Republican Senate?

FEINGOLD: I'd be pretty surprised. But this president,
presumably, will be president for several years. And it is very
possible that others will later on control the Congress. And this is
something that could be examined at different points.

If the president changes course and indicates that he understands
that this was not lawful and that he should not have done it, then it
becomes less important.

But if he continues to assert not only this but other extreme
executive power doctrines, it will continue to be important to push
back and to ask the president to return to the law.

Thank you very much.