Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Bruce Fein, a very well respected conservative legal scholar and Reagan's Deputy Attorney General, has officially called for Bush to be impeached for what he calls "political crimes against the Constitution." He did so on Keith Olbermann's show last night (here's the full transcript):
OLBERMANN: Do you think this president needs to be impeached?FEIN: Yes. I think the founding fathers intended the impeachment threshold to be satisfied if there were political crimes against the Constitution, against our checks and balances and separation of powers. Those are the mechanisms, what you might call the scientific method for staying on an even keel, avoiding folly and abuses. And I think that President Bush over the years has crippled that mechanism.
And here he lays out the list of reasons why:
FEIN: But the strongest case are his claims that he can surveil Americans, intercept their e-mails in violation of the Foreign Intelligence Surveillance Act. That he can run a secret government, for example. Your program earlier, Keith, in a rather understated way, indicated that we don't know if secret programs that have not been leaked to The New York Times yet that are spying in Americans.And it may well be, as the Church Committee discovered 10 or 20 years afterwards, that there has been massive misuse of intelligence. Also his claim that he can identify any American citizen as an enemy combatant, detain them indefinitely in Guantanamo Bay, without access to lawyers, utilizing secret evidence to detain them.
Those are the kinds of egregious violations of due process and notions of judicial review and checks that justify the conclusion that these are political crimes against the Constitution itself.
He also pointed to the new Executive Order that Bush signed last week allowing him to seize all of the assets of anyone he deems to be undermining the situation in Iraq as a blatantly unconstitutional claim:
OLBERMANN: One more thing that may be added to this ledger, Bruce.The conservative Web site WorldNetDaily had posted today a critique of Mr. Bush that could have read like one posted on liberal Web sites that referred specifically to this executive order that he signed last week, claiming the power to seize anyone's assets if he decides they have so much as received goods or services for someone who might pose a risk of committing violence in Iraq.
A, can he do this? B, can he do this to Americans in America? And C, what does that Fifth Amendment say about it?
FEIN: Well, he has claimed to do this under the International Economic Emergency Powers Act. And even if it authorized him to do that, the Constitution surely does not. Because the gist of the executive order is to impose a financial death penalty on anyone who he says on his say-so alone creates a significant risk of undermining the rehabilitation program or political reforms in Iraq.
A "significant risk." Now they could conclude that you have a risk if you are very hostile to the various policies that he has undertaken in Iraq. And this idea that you could end your financial life unilaterally without notice is totally antithetical to the Fifth Amendment.
He is undoubtedly right. The executive order is a clear violation of both the 4th and 5th amendments. The government may not seize property without due process of law; the accusations of an executive agency do not constitute due process by any stretch of the imagination, no matter how authoritarian the imagination's owner might be.
Comments
But do the democrats have the balls? No sign of them yet.
Posted by: dogscratcher | July 27, 2007 9:55 AM
Specifically, does Nancy Pelosi have big enough balls?
Posted by: chris | July 27, 2007 10:50 AM
Off topic, but how does the government's ability to seize the assets of people accused of drug offenses (before conviction, I believe) NOT violate these same provisions of the constitution... no expert here, willing to be educated.
Posted by: Phaedrus | July 27, 2007 10:53 AM
Phaedrus-
Those laws clearly do violate those same provisions.
Posted by: Ed Brayton | July 27, 2007 11:44 AM
What a mess.
I remember watching the "great uprising" of intellectual conservatives against Bush back in 2004 and believing that I was actually witnessing a movement that had chosen to rescue itself from monsters. Then the 2004 elections happened and the monsters claimed a mandate. Ah well.
6.5 years of steadily escalating outrages against the constitution and the rule of law and still he sits on his petty throne. If he hasn't yet passed the threshold for impeachment in congress' eyes, then what possible violation might spur them into action?
Posted by: Dan McCausland | July 27, 2007 1:55 PM
"6.5 years of steadily escalating outrages against the constitution and the rule of law and still he sits on his petty throne. If he hasn't yet passed the threshold for impeachment in congress' eyes, then what possible violation might spur them into action?"
Do you really have to ask? All it will take is an out of wedlock bj.
Posted by: bybelknap, FCD | July 27, 2007 3:31 PM
Although it's nice to see Bruce Fein finally consent to reality, let's not forget that he was for years an enabler and supporter of the current Bush Administration.
Also, I cannot get out of my head the idea that so many 'conservatives' are suddenly exercised about Bush because of a hidden agenda. Namely, the likelihood that our next President may well be a somewhat progressive Democrat, and their administration might also make use of the same powers that the Bush Administration has been accruing for the past six years. Of course, the right-wing fear stems from the distinct possibility that those powers would be used against them.
Posted by: Poly | July 27, 2007 3:39 PM
So where do I sign?
M-Peach-W
Posted by: SharonB | July 27, 2007 3:48 PM
Poly-
This is nothing new for Fein. He's been blasting Bush's unconstitutional policies since 2002; that hardly makes him "for years, an enabler" of Bush.
Posted by: Ed Brayton | July 27, 2007 3:56 PM
Ed! Why do you love drug dealers and hate our troops!
Posted by: Michael Suttkus, II | July 27, 2007 4:01 PM
Fein was on Bill Moyers Journal 7/13/2007 with John Nichols of The Nation. Fein made an extremely detailed and powerful case for impeachment.
BRUCE FEIN: I think Bush's crimes are a little bit different. I think they're a little bit more worrisome than Clinton's. You don't have to have--
BILL MOYERS: More worrisome?
BRUCE FEIN: More worrisome than Clinton's-- because he is seeking more institutionally to cripple checks and balances and the authority of Congress and the judiciary to superintend his assertions of power. He has claimed the authority to tell Congress they don't have any right to know what he's doing with relation to spying on American citizens, using that information in any way that he wants in contradiction to a federal statute called the Foreign Intelligence Surveillance Act. He's claimed authority to say he can kidnap people, throw them into dungeons abroad, dump them out into Siberia without any political or legal accountability. These are standards that are totally anathema to a democratic society devoted to the rule of law."
Transcript:
http://www.pbs.org/moyers/journal/07132007/transcript4.html
Watch:
http://www.pbs.org/moyers/journal/07132007/watch.html
Posted by: Bob | July 27, 2007 4:33 PM
Growing up in rural conservative areas in the 90's, I knew lots of people who expressed support for Nixon. He was innocent, in their minds, a man of integrity smeared by the democrats and the media. In 30 years, the same thing will be said about Bush, by the same kind of ignorant people.
Posted by: steve s | July 27, 2007 5:14 PM
Ed, I have to disagree with Fein's interpretation of Bush's recent executive order, and also to flag his claim as an exercise in quote-mining.
You quote Fein as saying:
However, the actual text of the E.O. reads:
(bolding mine)
I suppose that if you edit out everything between "Secretary of Defense" and "to pose" and also everything between "committing" and "effect of" (inclusive of those words), you couls arrive at Fein's claim. I really don't think that an interpretation which depends on such editing can be regarded as honest.
Also, Bush is claiming this authority under the International Economic Emergency Powers Act and the National Emergencies Act. If you read the latter, specifically paragraph 1622, it turns out that Congress has the power to terminate any national emergency proclaimed by the President- and any powers delegated to him under the NEA- by passing a joint resolution to that effect, irrespective of his wishes in the matter.
One might also want to note that if the fantasists in the Bush administration were to try to twist the language of this E.O. into a pretext for freezing the assets of opponents of their Iraq policies, they would have no choice but to admit openly that they are using Executive power to impose extrajudicial punishment on political opponents because they are political opponents.
Now, even Republican Congresscritters are scrambling to distance themselves from this administration; vide the recent House vote to prohibit permanent US bases in Iraq. Bush is down to the irredeemable twenty-odd percent of personality cultists, authority-worshippers and troglodytes. Congress has the power under the law to take away his shiny new toy at will. How likely is it, then, that even the most deluded fantasy-mongers in the administration would try to pull something like what Fein is claiming, or that they would be able to pull it off?
It's a good idea to scrutinize any new claim of Executive power in the light of what the worst-case potential for abuse is, and a good thing for the question of the limits of that power to be part of the public dialogue, but we're drifting into tinfoil hat territory here.
In fairness, i should thank the many patrons of the Alcoa Haberdashery Shoppe, whose constant screaming that "Bush just outlawed protest!" is the reason that I took the time to look this stuff up a few days ago and consequently had it available now.
Posted by: Ktesibios | July 27, 2007 6:05 PM
Ktesibios:
But as Fein pointed out, the operative language there is "or to pose a significant risk of committing" such violent acts. That's incredibly broad, and remember that this determination is made solely by the executive branch, without any due process protections whatsoever. If the president and his underlings decide that someone poses a "significant risk" of doing something in the future, they can seize their assets.
Posted by: Ed Brayton | July 27, 2007 8:37 PM
Posted by: Craig Pennington | July 27, 2007 9:26 PM
To cobble up a claim that opposing their policies constitutes a significant risk of committing an act of violence would require torturing their own language beyond recognition. Against whom would they act? Members of Congress who introduce measures aimed at withdrawing the troops from Iraq? Members who vote in favor of such measures? Cindy Sheehan? Michael Moore?
How will they freeze the assets of domestic political opponents without making it brilliantly clear that they are acting to suppress the exercise of fundamental Constitutional rights?
Since you don't seem to have comprehended all of my comment, let me remind you: under the very same laws which Bush cites as authority, Congress can at any time terminate the national emergency which is the entire basis for his claiming these powers. If Bush were to act against his domestic opposition in this manner, do you seriously believe that Congress would acquiesce in it, especially when they themselves could be the next victim and they have the power to take away his weapon? Remember that the House is in the hands of the Democrats and that there are very likely a few Republican Senators left with enough regard for the fundamental principles of American government- and for their own continued place at the public trough to negate the effect of that smirking little oil slick Lieberman.
If the administration's intent is to try to intimidate their opposition, you and Fein are acting as their enablers by amplifying this fantasist viewpoint.
Posted by: Ktesibios | July 27, 2007 10:21 PM
What is the legitimate goal that requires this Executive Order? Point to one specific example in the past five years where, had this order been in place, something good would have come of it that could not have come otherwise.
Posted by: Craig Pennington | July 27, 2007 11:01 PM
Let me clarify: I have an idealized view of the U.S. and its role in the world. Fundamental in that view is the rule of law. Civil forfeiture puts some serious motivational strains on the rule of law. Given that I suspect that the current administration was perfectly willing to de-select the wielders of the power of government authority -- Republicans that they had appointed to begin with -- based on a perceived lack of willingness to abuse that government authority for political reasons, why should I give this administration the benefit of the doubt?
Posted by: Craig Pennington | July 28, 2007 12:02 AM
Ktesbios:
I don't think he would use such an order to seize the assets of political opponents. I think it's far more likely that he would use it against Muslim organizations and charities. And the problem I have with it is the same problem that Fein has with it, the lack of due process. If they can actually make the case that an organization has ties to terrorist groups or has any role in committing violence, let them bring charges in court and prove it. If you really can't see what's wrong with the executive branch unilaterally declaring that it has the ability to bankrupt people on their own say so, without any due process at all, I don't know what else to say about it.
Posted by: Ed Brayton | July 28, 2007 12:37 AM
Ktesibios,
The power to unilaterally condemn an individual, whether through imprisonment or confiscation of their assets, with no oversight or judicial review of any form was denied to the English King in the 12th century. The King was specifically denied this power. Think about that for a moment.
Of course, US Presidents have also been denied this power. The constitution is quite clear on the matter, with Fourth and Fifth Amendment protections categorically denying these sorts of tyrannical powers to the president.
Bush has unilaterally staked a claim to a series of powers that allow him, or any future presidents, to imprison US Citizens or seize all of their assets at his sole discretion and with zero external oversight. What you don't seem to comprehend is that these are not toys that presidents get to play with in a free nation, national emergency or no.
I am puzzled by your assertion that the seizure of assets of any individual or groups who have not been convicted of any crime is reasonable, that those words must be "tortured beyond recognition" in order for this power to be abused. The power itself is a horrible abuse of presidential power and an absolute abomination against the rule of law and a free society.
How would I package all of this up into a soundbite? "Why do you hate freedom so much?" Garbage line I know, and probably unfair, but it does cut to the heart of the matter.
Posted by: Dan McCausland | July 28, 2007 1:15 PM
Ed asserts:
Fein supported Bush's election in 2000 and his re-election in 2004. He was an adjunct scholar of the American Enterprise Institute, a prominent neoconservative think-tank.
Let me quote Glenn Greenwald about this:
Posted by: Poly | July 29, 2007 12:00 AM
Poly wrote:
I'd like to see evidence that he supported Bush in 2004. If he did, it was only because he thought Kerry would be worse in some other respects. But he has been blasting Bush on his Constitutional policies for years.
Yes, and also the Heritage Foundation. But that is irrelevant to this discussion.
Posted by: Ed Brayton | July 29, 2007 1:44 AM
Ed writes:
He has admitted to it on a number of occasions. His statements attacking Kerry on a wide number of issues are a matter of public record, so he couldn't very well deny it.
So he got what he wanted - a second Bush Administration. And everything that goes with it.
And what does that mean exactly insofar as his credibility as a critic is concerned? Does he still think his position in 2004 was the correct one? If no, considering he was so wrong then, why should we care what he says now. If yes, he is a hypocrite.
No, it isn't.
The neo-con ideology was the driver and the theoretical foundation for most of the policies of the Bush Administration. It is impossible for a proponent of that ideology to be a credible critic of what the Administration is doing and has done. It is simply irrational to think that an imperial prerogative and disdain for law abroad would not be coupled with the very same at home.
However, I am glad that Fein has finally faced reality - at least to some extent.
Posted by: Poly | July 29, 2007 8:24 PM
Poly wrote:
We should care for two reasons: A) he's right and B) he's a prominent conservative. It can't be anything but a good thing to have serious conservative legal scholars pointing out why so many of Bush's legal policies are unconstitutional.
You're engaging in precisely the sort of shoddy, simplistic, label-based thinking that you undoubtedly laugh at when your political opponents do it. You're doing the same thing to the label "neo-con" that conservatives have done to the word "liberal", made it into nothing more than a catchphrase for "the people I don't like." Bush's legal policies and his foreign policy are entirely different issues and they do not fall so easily into the "neo-con" category you wish to place them in. One could, for example, support the war in Iraq completely and still object vehemently to the NSA wiretapping program, to his policies on "enemy combatants", to his approach on habeas corpus or to his use of presidential signing statements. For all I know, Fein may be an enthusiastic supporter of the war on Iraq, but that does not mean that he supports Bush on any of the issues I just named. He would hardly be alone in that. Tim Sandefur is another person who supported the war in Iraq but finds all of those policies I just named to be blatantly unconstitutional. There is no single "neo-con ideology" and more than there is a single "liberal ideology"; there is a collection of disparate policies that one may coherently support in some cases and oppose in others.
Posted by: Ed Brayton | July 29, 2007 9:06 PM
Ed--with all due respect, you simply did not respond to his argument, namely:
Posted by: PMembrane | July 30, 2007 12:22 AM
PMembrane-
That's just a ridiculous argument. There are, in fact, lots of people who supported the war in Iraq but do not support Bush's notions of an imperial presidency here. The wording simply confuses two entirely different definitinos of "imperial" (and presumes that those who support the war do so because they see it as an imperial projection of power). Just a dumb argument.
Posted by: Ed Brayton | July 30, 2007 12:37 AM
Ed:
I really have to disagree with your convenient revisionism. It would be convenient if there were no such thing as an imperial neo-conservative ideology and if what was going on with the Bush Administration were just another expression of pragmatic decision making. Then maybe rational argument would stand a chance with this crew. But that isn't the case.
Sure there are plenty of people who supported the Iraq War for ideological reasons that do not support Bush's domestic actions as they are now being revealed. All one can say to them is it is time to get out of the bubble.
To paraphrase what I quoted above, the operative meaning of conservatism (or of neo-conservativism - take your pick) for us is what the Bush Administration has been doing in its totality for the past six years. Any other meaning is just so much blathering.
In any event, the most reasonable explanation for the current Administration's domestic agenda is that it is driven essentially by the same ideological considerations that have driven its foreign policy. The Administration itself makes this point all the time, so this isn't some sort of left-wing meme, as you are implying.
Simple? Probably. But just because something is simple doesn't mean it is incorrect.
Posted by: Poly | July 30, 2007 6:30 PM