The Impeachinator
Watchdog Fein
By Harvey Silvergate
The Phoenix, November 20, 2008
go to original
See Article III.6
Non-Cooperation with Congress
| |
| Bruce
Fein:
HAIL TO THE CHEATS: Whether it’s George
W. Bush, Teddy Roosevelt, or FDR, Bruce Fein
says presidential abuse of power has been a
problem.
Source: The Phoenix |
This past summer, the daytime drivel of ABC's The
View was briefly interrupted by some actual substance.
Their guest was Speaker of the House Nancy Pelosi,
and her appearance, on July 28, came just days after
fellow Democratic representative Dennis Kucinich had
introduced legislation to impeach President George
W. Bush. Pelosi, whose ascendancy was based largely
on anti-Bush sentiment, was asked why, for the past
two years, she had consistently opposed impeachment.
Her response: it simply would be too divisive for
the country, but "[i]f somebody had a crime that
the president had committed, that would be a different
story." While some moderate Democrats agreed
with Pelosi, her centrist appeal incensed the party's
left wing. It sparked more than just liberal ire,
however. Former Reagan-administration lawyer and lifelong
Republican Bruce Fein also took strenuous issue with
Pelosi.
Fein has spent the past two years rallying citizens
(and their representatives) to push Bush and Vice-President
Dick Cheney out of office — a message he shared
in an impassioned lecture to a gathering of ACLU of
Massachusetts (ACLUM) members on November 12. When
a self-described conservative speaks for 90 minutes
— without a single note or teleprompter —
and leaves a (mostly) liberal room spellbound, one
can't help but pay attention.
Fein's arguments, which he's been making on Capitol
Hill and around the country to whomever will listen,
have been collected in a small but power-packed volume
that has just hit the bookstores, Constitutional
Peril: The Life and Death Struggle for Our Constitution
and Democracy (Palgrave Macmillan).
Process, not personality
A Bush impeachment is now moot, of course, as a new
president prepares to assume office in January. But
impeachment was never to be, notes Fein, not because
it lacked legal underpinnings (they are clear and
numerous, as methodically delineated in Constitutional
Peril), but because the members of Congress needed,
as he put it to his ACLUM audience, "a backbone
implant."
Fein has been a particularly prickly thorn in Bush's
side, precisely because of his impeccable conservative
and Republican credentials and the widespread respect
he is accorded on both sides of the aisle. He voted
for Bush and Cheney twice, before the revelations
of abuse of power began to leak out. He also supported
the appointments of Chief Justice John Roberts and
Associate Justice Samuel Alito to the Supreme Court,
as well as the previous nominations of Justice Antonin
Scalia and the late Chief Justice William Rehnquist.
He loyally served Ronald Reagan in a variety of capacities,
believes that the Supreme Court's opinions protecting
abortion and homosexual sodomy "created wretched
constitutional law," and opposes affirmative
action, although he supported, in his words, "the
color-blind civil-rights movement of the 1950s and
1960s."
The conservative values that cause Fein to oppose
creative judicial expansions of constitutional rights,
however, also cause him to oppose "unchecked
power [that] invariably degenerates into despotism."
And he hardly reserves his venom for the Bush gang.
Theodore Roosevelt, another Republican, abused power
and engaged in impeachable offenses by tricking the
nation into engaging in war, Fein claims. And Franklin
Roosevelt, a Democrat, unlawfully and unconstitutionally
put American citizens of Japanese ancestry into "concentration
camps" based on racist lies told to the Supreme
Court. While seeing Richard Nixon resign office in
disgrace was "one of the highpoints" of
his life, Fein told the ACLUM audience he would have
preferred an impeachment trial. Any national trauma
suffered, he says, would have been worth the establishment
of a clearer precedent (and deterrent) for future
lawless presidents, including perjurer Bill Clinton.
Fein, above all, respects process — it is not
Bush that he despises; rather, it is the way in which
the president has so brazenly flouted the Constitution
he was sworn to uphold. As such, Fein warned the ACLUM
that citizen vigilance against unchecked executive
authority cannot stop when Barack Obama moves into
the Oval Office. Indeed, the über-popular president-elect
will inherit an executive branch that has seen unprecedented
increases in power over the past eight years, and,
in reality, for many decades. It'll be up to the people
to hold Obama accountable to his promises of increased
transparency and respect for our nation's founding
documents. Fein, true to his nature, is skeptical
— the tolerance of executive over-reaching,
he believes, has become too deeply engrained in our
political and constitutional culture.
President, Emperor, King
Throughout his decades of public service, in which
he had access to a considerable body of classified,
as well as recently declassified, national state secrets,
Fein says he never came across a leak or disclosure
that actually harmed national security. The harm,
he warns, is actually done by the classification system
itself, which is so overly inclusive that it keeps
the nation from discovering executive folly until
it's too late.
Fein deems the Bush administration's excessive and
obsessive secrecy as the most corrosive element of
the past eight years. He compares Bush's secret orders
in the "war on terror" to "the practice
of Roman emperor Caligula of writing laws high on
walls in miniscule print to deny citizens fair warning
of what was required."
In his book, Fein shreds the "state-secrets
doctrine" that allows the government to claim
potential damage to national security as a legal basis
to dismiss lawsuits brought against abusive government
officials by aggrieved citizens. "The state-secrets
doctrine," writes Fein, "is a tyrant's dream
policy." And as for the covert practice of extraordinary
rendition — whereby CIA officials ship a captive
to a cooperating country known to engage in torture
— Fein describes it as an "ends justify
the means" evasion, the folly of thinking that
"the enemy will be defeated by aping the enemy."
For all of the time and energy Fein spends trying
to spur members of the legislature to action (he has
remarkable access to congressional leaders, who seek
his advice on a wide variety of subjects, from telecommunications
and energy to civil liberties and international law),
he doubts that Congress will oppose any modern president.
"No person with active cerebral faculties,"
writes Fein, "can be optimistic about the survival
of a Republican form of government and checks and
balances in the United States." When Fein testified
before the House Judiciary Committee this past July
to urge impeachment, he was shocked to learn that
"all pejorative references to President Bush
or Vice-President Cheney insinuating deceit or impeachable
high crimes and misdemeanors were censored under a
House rule derived from the British Parliament's prohibition
on voicing 'irreverence' toward the king."
Footprints in the sand
Fein, despite all of his political differences, transfixed
the largely liberal ACLUM audience with his moral
and constitutional fervor. (ACLUM Executive Director
Carol Rose has already invited Fein for a return engagement,
to address an even larger audience.) His is a message
yearning to be heard and heeded in an age when, as
Fein notes at the end of his book, "the overwhelming
majority of Americans are vastly more thrilled by
sporting events and creature comforts than they are
by the moral challenges and burdens of self-government."
Given his pessimism, one wonders why Fein maintains
such a back-breaking schedule of exposing and opposing
unconstitutional usurpations of power and betrayal
of duty? "Anything else would be dishonorable,"
writes Fein. And, besides, by speaking out "you
might leave footprints in the sands of time to inspire
someone yet to be born to champion freedom in more
propitious circumstances."
Let us hope those circumstances are, as of today,
just some two months away. But those with faith that
the Obama administration will diverge sharply from
the war on liberty waged by George W. Bush should
recall Reagan's approach to then–Soviet Prime
Minister Mikhail Gorbachev's promises of glasnost:
"Trust, but verify."
Harvey Silverglate is a Cambridge-based criminal-defense
and civil-liberties lawyer, and a member of the Board
of Directors of the ACLU of Massachusetts. His next
book, Three Felonies a Day: How the Feds Target the
Innocent, is forthcoming next year from Encounter
Books. Kyle Smeallie assisted in the preparation of
this piece.
