Dispatches from the Creation Wars

Bruce Fein, prominent conservative legal scholar and former Reagan DOJ official, has a new book out called Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. Fein is a staunch critic of the Bush administration’s laundry list of unconstitutional policies and he is participating in an online salon about the book at Firedoglake. Glenn Greenwald introduces the discussion by discussing the political context in which his opposition to those policies arose:

After The New York Times, in December, 2005, revealed that the NSA, under George Bush’s directive, had been eavesdropping on Americans citizens for years without the warrants required by law, very few commentators, and even fewer politicians, were willing to state the true meaning of what had been revealed: namely, that this was a flagrantly criminal act — a felony — punishable under FISA by 5 years in prison and a $10,000 fine for each offense. Even more significantly, that revelation, more than any which preceded it, conclusively demonstrated the true face of the Bush presidency: a lawless regime which, in secret, had literally adopted a theory of executive power that vested the President with one of the definitive powers of a tyrant — the right to float above the law and to violate it at will.

For months after the NSA story was published, Beltway Republicans blindly defended the President’s lawbreaking, while Beltway Democrats, with rare exception, were so fearful of challenging the President on “terrorism” issues that, when asked about Bush’s FISA lawbreaking, they spouted babbling incoherence when they bothered to object to it at all. For that reason, the full extent of the Bush administration’s assault on our constitutional framework, to say nothing of the chronic criminality of our highest government officials, was never really conveyed to the public in the aftermath of the FISA scandal, because most political figures of any prominence, in both parties, abdicated their duties to demand that the President to adhere to the law.

One of the very rare exceptions to this craven lack of principle and cowardice was — and remains — Bruce Fein, a Harvard-trained constitutional lawyer, a long-time ideological conservative, and a former official in the Reagan Justice Department. While most of his fellow conservatives were defending anything and everything George Bush did, and most establishment Democrats were running away from these issues as fast as their scared little legs could carry them, Fein became one of the most eloquent and uncompromising defenders of our country’s constitutional values in the face of a coordinated onslaught led by Dick Cheney’s office and the Bush DOJ. Fein, to my knowledge, was the first prominent political figure to declare — in a December 27, 2005 Washington Times column that has aged exceptionally well — that Bush’s FISA lawbreaking was not only a threat to our republican principles, but was an impeachable offense, and he further argued that Congress had not the option, but the Constitutional duty, to impeach the President if the lawbreaking did not cease immediately..

As further revelations of anti-democratic policies emerged — involving torture, rendition, due-process-less detentions and a whole slew of frivolous legal theories to shield the President’s behavior behind a wall of secrecy — Fein has remained one of the nation’s most relentless and tenacious critics of the Bush administration’s assault on our Constitution, as well as the inexcusable Congressional abdication in the face of this assault. He worked with Sen. Russ Feingold on the Wisconsin Senator’s resolution to censure Bush for violating FISA, and most of all, he has repeatedly urged that Congress fulfill its constitutional obligation by pursuing impeachment proceedings against this incomparably lawless President.

I also agree firmly with this statement by Greenwald:

While other books have critiqued the Bush administration’s theories of executive power and chronicled its chronic lawbreaking, Fein very persuasively makes the case that, at this point, the blame is far more collective than suggested by those who simply heap blame on the White House. While the crimes of the Bush administration were originally conceived of and implemented in secret by a small group of executive branch officials, that is no longer the case. One by one, the criminal acts of the Bush administration has been revealed. Yet Congress has done virtually nothing in response, except to endorse the lawbreaking and immunize the criminals — as it did when it authorized the President’s detention and interrogation schemes with the 2006 bipartisan passage of the Military Commissions Act, as well as the 2008 enactment by the Democratic Congress of the FISA Amendments Act. And through it all, American citizens have expressed little outrage at the systematic evisceration of our core liberties.

The right’s demagogic notion of patriotism, which functions as a means of shutting down anyone who dares to question the leader during wartime (except, of course, when a Democrat is in office), has been so successful that they have pretty much transformed Democrats into silent lapdogs, shaking in fear of being called “soft on terrorism” (previously, of course, it was soft on communism).

Far too many liberals refused to speak out against the Bush’s unconstitutional policies until public opinion had already turned against the war in Iraq, but even after that point they are still terrified of actually standing up to the president and doing their duty. They have caved in at every turn, like Obama did when he acted in complete contradiction of his previous position and voted for the FISA (non)-compromise a few months ago.

The discussion goes on in the comments, where Fein is answering questions from readers. He lays out his priorities for stemming the tide of authoritarian government:

Top three priorties would be: (1) prohibit the President from detaining alleged enemy combatants without accusation or charge; (2) prohibit the President from lying to Congress or the American people to elicit support for war; and, (3) prohibit the President from claiming executive privilege or state secrets to conceal information or testimony from Congress.

A good start, but I would add a prohibition on invoking executive privilege or the state secrets privilege in any court case challenging the constitutionality of executive action as well. Congress could not make these things law while Bush was in office; he would veto any such attempt and they didn’t have the votes to override that veto. But if Obama is elected, they will have no excuse.

The restoration of constitutional safeguards should be a top priority. Obama should not only sign such a bill, he should initiate it himself and urge Congress to pass it. Once in place, it would be much more difficult to change by any future administration. If he does so, I’ll forgive his flip flop on FISA as a politically convenient means of getting the power to fix it rather than a cowardly cave in to political pressure. If he doesn’t, it will prove that his lofty rhetoric on the issue was empty from the start.