"[The] president needs to be reminded that separation of powers does not mean an isolation of powers," former White House counsel John Dean told the Senate Judiciary Committee Friday. "He needs to be told he cannot simply ignore a law with no consequences."
Arguing in favor of U.S. Senator Russ Feingold's motion to censure President Bush for illegally authorizing the warrantless wiretapping of the phone conversations of Americans, the man who broke with former President Richard Nixon to challenge the abuses of the Watergate era told the committee that Bush's wrongs were in many senses worse than those of Nixon.
"I recall a morning – and it was just about this time in the morning and it was exactly this time of the year – March 21, 1973 – that I tried to warn a president of the consequences of staying his course. I failed to convince President Nixon that morning, and the rest, as they say, is history," Dean, who famously told Nixon that there was "a cancer growing" on his presidency, explained in testimony submitted to the committee. "I certainly do not claim to be prescient. Then or now. But actions have consequences, and to ignore them is merely denial. Today, it is very obvious that history is repeating itself. It is for that reason I have crossed the country to visit with you, and that I hope that the collective wisdom of this committee will prevail, and you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it."
Republicans on the committee attempted to dismiss Feingold's motion as a partisan gesture, rather than a necessary reassertion of the system of checks and balances that has so decayed since Congress ceded its oversight role in the aftermath of the September 11, 2001, attacks on the World Trade Center and the Pentagon. Utah Senator Orrin Hatch was particularly aggressive in echoing Republican National Committee talking points, denouncing Feingold's motion as nothing more than an attempt to "score political points."
But Dean rejected that claim, as did Bruce Fein, a lawyer who served in Ronald Reagan's Justice Department and who joined Dean in testifying in favor of the censure motion.
"To me, this is not really and should not be a partisan question,'' said Dean, who served as chief counsel for the Republican minority on the House Judiciary Committee before joining the Nixon White House. "I think it's a question of institutional pride of this body, of the Congress of the United States.''
Feingold went even further, suggesting that Congress has a duty to hold president's to account for authorizing a secretive domestic spying program that operates without legal authorization, in clear violation the 1978 Foreign Intelligence Surveillance Act.
"If we in the Congress don't stand up for ourselves and the American people, we become complicit in the lawbreaking,'' Feingold said. ``The resolution of censure is the appropriate response.''
Predictably, Hatch and several of the more aggressive defenders of the Bush administration on the committee fell back on the "talking points" argument that it would be inappropriate to censure Bush while the country is at war in Iraq. "Wartime is not a time to weaken the commander-in-chief,'' growled the Utah Republican.
But Feingold rejected the suggestion that Congress should surrender its oversight responsibilities in wartime.
"Under this theory, we no longer have a constitutional system consisting of three co-equal branches of government, we have a monarchy," explained the senator, who added that, "We can fight terrorism without breaking the law. The rule of law is central to who we are as a people, and the President must return to the law. He must acknowledge and be held accountable for his illegal actions and for misleading the American people, both before and after the program was revealed."