The week after Senator Russ Feingold introduced his resolution to censure President Bush for illegally wiretapping Americans, Democratic senators could be found fleeing from reporters in the halls of Congress, as if it were Feingold’s resolution—not George Bush—that was wildly unpopular with the American people. A poll by ARG research found a 2 percent margin of support (46-44 percent) for censure just after the resolution was introduced. Bush’s job dis-approval margin has varied around 15-25 percent (approval in the 30s, disapproval in the 50s) in recent polls.

It’s a familiar pattern. From 9/11, to Iraq, to Katrina, to Presidential lawbreaking, to the skyrocketing national debt, it’s a question being asked with increasing urgency by grassroots Democrats—how did the Republican’s failures become the Democrat’s problem? Timidity, if not outright fear among Beltway Democrats contrasts sharply with growing impatience, even outrage among the grassroots.

Locally, that outrage has been reflected in the insurgent campaign of Marcy Winograd, challenging Congresswoman Jane Harman in the June Democratic Primary. (See “Winograd's Campaign Building Steam” p. 4.) Winograd minces no words in calling for the removal of Bush, Cheney and Rumsfeld. “They have committed high crimes,” she said flatly on KPFK’s Background Briefing, on Sunday, March 25.

A related question is why the Democrats continue to accept the Republican’s increasingly unpopular framing—that criticism of Bush aids the terrorists—rather than asserting their own increasingly popular frame—that the President is not above the law, any more than he’s above criticism: we have a president, not a king.

Critics point out that far from being extremist and partisan, stressing the rule of law would appeal to voters across the political spectrum, as polls have repeatedly shown. It would also help tie Congressional Republicans tightly to Bush’s sinking popularity, just as they are trying to distance themselves from him, as detailed in Time magazine’s current issue. Not only have Congressional Republicans covered up for Bush and ignored his extra-legal signing statements (such as the recent ones negating the torture ban and reporting requirements in the USA PATRIOT Act), they have their own problems with widespread corruption and lawbreaking, from Senate Majority Leader Bill Frist (insider trading) and former House Majority Leader Tom DeLay (conspiracy, money-laundering, etc.) on down.

One reason Beltway Democrats run from confrontation is certainly the media’s willingness to echo GOP talking points. (Chris Matthews recently expressed shock, bordering on disbelief, at how unpopular Bush is outside the Beltway.) But as Bush’s abysmal approval ratings are matched by Republicans in Congress, the media’s rightward tilt seems to have lost its power to persuade.

As the election year heats up, citizens, activists and candidates outside the Beltway groupthink are challenging the party’s timid, reactive posture that has produced repeated failure at the polls.

Campaign Ad Calls Bush Program ‘Illegal and Wrong’

A striking example is Sean Patrick Maloney, a newcomer in the race for Attorney General in New York. Maloney, has just gone on the air with TV ads (viewable online at seanmaloney.com) that directly attack Bush’s illegal wiretapping.

"Hey, let's talk about what's happening in America," Maloney says to open the ad. "George Bush is secretly tapping American phones without a court order. Under New York law, that's illegal and wrong."

Holding a 10-page complaint in his hand, Maloney says, “As your next attorney general, I’ll file this complaint, demanding a federal court order to stop it.” The ad concludes with Maloney saying, "The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?"

Maloney is decidedly positive. “The story of America is always that as soon as we get back to our basic ideas, we get out of trouble,” he told Random Lengths

“Democrats need to stop being afraid to oppose things that are wrong. And we need ideas, not just objections. They’re the party of bad ideas, and were the party of good objections. But bad ideas beat good objections. We need to put forward good ideas. I’m trying to put forward an idea that can legalize this program. The goal is to get some independent judicial oversight.”

Although he’s a proud Democrat, Maloney is quick to point out that the rule of law is a bipartisan issue, with plenty of conservative support. He cited Jonathan Turley, a leading conservative legal scholar in constitutional law, as a supporter of his effort.

“The idea is a valuable one,” Turley confirmed. “The obligation of an attorney general is to protect citizens form unlawful or abusive conduct, either by other citizens or by the federal government.”

Pressure From Lawsuits, Voters Vs. Business-As-Usual

That could start to change as the campaign season heats up, and as private lawsuits are filed challenging the legality of Bush Administration policies on numerous fronts. Lawsuits have been filed alleging government spying on attorney-client communications. Washington, D.C. attorneys Wendell Belew and Asim Ghafoor, attorneys in Washington, D.C., for example, have sued the federal government based on the accidental release of transcribed conversations between them and one of their clients in May 2004. In turn, Tom Nelson, an Oregon lawyer representing them, has filed a separate suit against the NSA alleging his offices were illegally searched, in addition to illegal wiretapping.

More such suits appear inevitable in light of a just-released Department of Justice (DOJ) response to questions from Democrats on the House Committee on the Judiciary. The DOJ states, “Although the Program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception.” [Emphasis added.]

On the campaign front, one sign of change is a recent national poll finding that 67.1 percent of Democrats (and 45.9 percent of all voters) are willing to agree with a pledge not to vote for pro-war candidates. A new group, Voters For Peace, has been launched with $1 million in grants to begin organizing these voters. Locally, Congresswoman Jane Harman is typical of many Beltway Democrats who are sharply at odds with those they’re supposed to represent on this issue. Harman, the Ranking Member (senior Democrat) on the House Intelligence Committee, has also effectively facilitated the cover-up of past violations by agreeing to purely forward-looking investigations in a March 2 statement issued with Committee Chair Peter Hoekstra.

A top Harman staffer disputed this characterization, saying, “If it wasn’t for Harman there would be no effort to look at it whatsoever. They would have done no oversight, no investigation.”

Leaving aside the abdication of Congressional duty to investigate serious breaches of law, there’s every indication Harman is being rolled even in the attempt to control future lawbreaking. She would like to bring the program into line with FISA, while Hoekstra said flatly, “"FISA needs to be modernized," in a UPI story at the time. According to UPI, “Hoekstra said that he and Harman ‘look at this (question of FISA) in very different ways.’” Hoekstra, of course, has the votes.

The problem with further loosening FISA is obvious with an administration that feels free to ignore laws it doesn’t like. In a parallel DOJ response to Republicans on the House Committee on the Judiciary, the DOJ claimed that wiretapping fell within the President’s constitutional authority, and that “The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power.”

This position not only flatly rejects the authority of FISA over the President, it rejects the authority of any such legislation. Glenn Greenwald, First Amendment lawyer, blogger and author of a forthcoming book, How Would A Patriot Act, explains: “Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants....”

“They are telling the Congress to its face that all of the grand debates it is having and the negotiations it is conducting are all irrelevant farces, because no matter what happens, the President retains unlimited power and nothing that Congress does can affect that power in any way.”

Outside the DOJ, few lawyers take these arguments seriously. Inherent powers are routinely regulated and checked by other powers. “Inherent” does not equal “unlimited.” This is the foundation of how separation of powers works—offsetting inherent powers keep each other in check—and separation of powers is fundamental to the structure of our government. But if Congress does not challenge such arguments, and punish transgressions based on them, it simply acquiesces in undermining the Constitution.

Because Congressional Republicans support, accept or ignore such arguments, and too many Congressional Democrats—such as Harman and Feinstein—shy from challenging them, there are growing feelings that this year’s elections are a rare opportunity for the people to speak out in defense of the Constitution and the rule of law. Insiders who see this as an extreme position have not been reading the polls any better than they read the Constitution.

Marcy Winograd, Harman’s challenger in the June primary, told Random Lengths, “It’s deeply disturbing that we have a Congress ready to invest absolute power in the executive. Instead of being the watchdog for the public and representing the public interest we have a Congress that’s all too eager to endorse illegal wiretapping.

“It behooves the ranking Democrat on the House Intelligence Committee, Jane Harman to be an advocate for the rule of law, not for the rule of Bush.”