Renowned attorney and political critic Bruce Fein reveals the dangers our Constitution and our nation have faced courtesy of the Bush Administration and a Congress asleep at the switch. In blistering detail, he deconstructs the policies of Bush in the War on Terror--from the flouting of the Foreign Intelligence Surveillance Act to the crippling of the Great Writ of habeas corpus--and forecasts that the damage he's done is unlikely to be repaired quickly or easily.
As Barack Obama takes office, there are questions that involve the very foundations of our government and the degrees to which they have been undermined, either actively or passively, by nearly everyone in power today. By exploring the constitutional crises of the past--from Lincoln and habeas corpus to Nixon and Watergate--Fein compellingly and presciently begins to answer those questions.
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About the Author
Bruce Fein is a columnist for The Washington Times, an attorney, and a political critic. He is the author of Constitutional Peril. He was part of the American Bar Association's Task Force on Presidential Signing Statements and appears regularly on CNN, NPR, and the BBC.
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The Life and Death Struggle for Our Constitution and Democracy
By Bruce Fein
Palgrave MacmillanCopyright © 2008 Bruce Fein
All rights reserved.
Impeachment or Executive Despotism
The worst crimes were dared by few, willed by more, and tolerated by all.
— Tacitus, Roman Historian
As the Roman Republic degenerated into dictatorship, the Roman Senate passed a law conferring upon the emperor "the right and power ... to transact and do whatever things divine, human, public, or private he deems to serve the advantage and overriding interest of the state."
In the days after 9/11, Congress gave President George W. Bush, with public acclaim, similar power by enacting the Authorization for Use of Military Force (AUMF): "[T]he President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This means that, among other things, the AUMF empowers President Bush to use the American military to kill any individuals in the United States whom he declares were complicit in the terrorist acts committed on 9/11 — on his say-so alone. In other words, the president is not required to supply evidence to a neutral or detached magistrate establishing reasonable cause for his belief that the target of the planned killing is a terrorist before employing lethal force. For example, if the president suspects that a dozen "high value" Al Qaeda adherents are living in a suburban Los Angeles home, the AUMF authorizes him to order an aerial bombardment of the residence to kill its occupants. If the president's suspicions are later proved wrong — as they were regarding the stockpiling of weapons of mass destruction in Iraq before the U.S. invasion in March 2003; the numerous erroneous detentions at Guantanamo Bay, verified by the Defense Department's voluntary release of hundreds of suspected unlawful enemy combatant detainees since September 11, 2001; and a June 23, 2008, federal appeals court decision nullifying an unlawful enemy combatant finding — the homicides would still be considered legal. The laws of war allow the killing of innocent civilians mistakenly believed to be lawful or unlawful enemy combatants. Moreover, if the house bombing kills bystanders or neighbors, their deaths will be dismissed as unfortunate collateral damage. Just ask the relatives of the hundreds of civilians who have been killed by the U.S. military in Iraq and Afghanistan.
On July 17, 2007, President Bush issued a draconian Executive Order entitled "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq." Without notice or an opportunity to be heard, a person's assets can be frozen if President Bush believes the individual "poses a significant risk of committing an act or act of violence" whose effect might weaken the stability of the government of Iraq. The order enables the president to impose financial death sentences on detractors of the Iraqi government based solely on his uncorroborated gut instincts, as the following example demonstrates: A critic verbally assails the Iraqi prime minister for permitting illegal private militias, sectarian police and military forces, and massive corruption in the oil and gas ministries. The president can decree that his gut tells him that this person poses a significant risk of committing such violent acts as flag burning in order to dramatize his or her concerns and attract media attention and is therefore a threat to the stability of the Iraqi government because the criticisms are incontestably true. Under the executive order, the critic's assets can be frozen, and it will then be illegal for any person to provide goods or services to the critic — for example, food to prevent starvation, medication to prevent a heart attack, or legal services to prevent a wrongful conviction!
The AUMF and executive order highlight why I believe that the nation confronts a choice between the impeachments of President George W. Bush and Vice President Richard Cheney or a degeneration of the U.S. Constitution into executive despotism. James Madison admonished in Federalist No. 48: "An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others."
Those who do not support impeachment might counter that President Bush has not yet exerted his military power to bomb residences or to freeze the assets of Iraqi war opponents; these evils remain hypothetical. There will be time enough to respond after the president acts contrary to the law or the Constitution. Impeachment should not be like preemptive war — striking a blow against the executive branch before concrete and demonstrable harm to society has been inflicted by the president and vice president. Detractors also say that the impeachments of Bush and Cheney would be too prolonged, politically convulsive, and detract from attention to more important domestic or foreign policy issues.
Both defenses of impeachment inaction are unconvincing. With regard to the latter argument, impeachment can be a strong force for healing and unifying — the opposite of being convulsive. After President Richard M. Nixon was forced to resign in the face of an imminent and assured conviction for impeachable offenses, his successor, President Gerald R. Ford, in his August 9, 1974, inaugural statement, declared: "My fellow Americans, our long national nightmare is over." If President William Jefferson Clinton had been convicted in the Senate of impeachable offenses, the transition to an Al Gore presidency would not have been politically jarring. In contrast, removing both Bush and Cheney from office for impeachable offenses would leave the White House in the hands of Democratic House Speaker Nancy Pelosi. That change in party control would begin tension with popular government because voters in 2004 supported a Republican in the presidency. Moreover, impeachment proceedings would confront Pelosi with a conflict of interest and place a cloud over her impartiality. She would be the beneficiary of successful impeachment initiatives against Bush and Cheney. That appearance of bias, however, could be resolved by Pelosi promising to yield the speakership to a Republican if Bush and Cheney were ousted. Impeachment proceedings against the duumvirate could also be swift. Evidence of their impeachable offenses is open and notorious: detentions of U.S. citizens indefinitely without accusation or trial; executive orders; imperial assertions of executive privilege; suspension of habeas corpus; presidential signing statements; military commissions; violations of the criminal provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA); abductions, imprisonments, and torture abroad, and so on. Nothing akin to a protracted archaeological expedition to unearth incriminating facts would be required of the House Judiciary Committee. All that would be needed would be a vote on whether the Bush–Cheney constitutional usurpations and abuses satisfy the impeachment benchmark of "high crimes and misdemeanors." And as to the idea that impeachment detracts from presidential or congressional attention to more urgent issues, experience points to the contrary. The impeachment ordeals of Presidents Nixon and Clinton did not prevent the enactment of domestic legislation or paralyze national security decisions. Central Intelligence Agency Director George Tenet was definitive in his book At the Center of the Storm: "I never saw any evidence that Clinton's personal problems [with Monica Lewinsky] distracted him from focusing on his official duties."
The impeachment of presidents or vice presidents is not commonplace in the United States. Many instinctively shun the idea because it seems novel or irregular. Either of these feelings customarily evokes magnified anxieties or apprehension that reason should quiet. Impeachment of the president or vice president would not be like the assassination of Julius Caesar or the beheading of England's Charles I, presaging political upheaval or a political revolution. It would not be like a criminal prosecution threatening imprisonment. The most it entails for the accused is removal from office and ineligibility to serve in the government of the United States. Article I, Section 3 of the Constitution provides, "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." Impeachment is not the type of sanction that provokes a president's supporters to armed resistance. There is life after impeachment — even political life.
In 1868, President Andrew Johnson was impeached by the Radical Reconstruction Congress, but was acquitted in the Senate. After his term expired, he served as a U.S. senator representing Tennessee in 1875.
President Nixon was forced to resign on August 9, 1974, after three articles of impeachment were voted by the House Judiciary Committee, and a Supreme Court decision exposed his own words on tape recordings demonstrating his complicity in the Watergate cover-up. But Nixon came to serve the role of elder statesman — even though the vast majority of Americans believed him guilty of felonies, for which President Ford pardoned him. He was occasionally consulted by later presidents. He wrote books — for example, RN: The Memoirs of Richard Nixon and Beyond Peace — and spoke to prestigious gatherings. He established the Nixon Center in Washington, DC, a respected think tank headed by Dimitri K. Simes. Nixon was not ostracized. His funeral was attended by all of the living former presidents, dignitaries from 88 countries, and the glitterati. He was eulogized by both former national security adviser Henry Kissinger and then-President William Jefferson Clinton.
President Clinton was impeached by the House and acquitted by the Senate in 1999. His impeachment ordeal, like Nixon's, has proven no impediment to his postpresidential financial success and political clout. He has amassed a substantial fortune through staggering speaking, consulting, and lobbying fees. On February 23, 2007, the Washington Post reported that the former president had amassed $40 million in speaking fees over the last six years, including $9–$10 million in 2006 and $475,000 in a single day for two speeches in Canada. Huge sums have been donated for the $165 million Clinton Library in Little Rock, Arkansas. In addition, President Clinton has raised enormous contributions for the Democratic Party, and he was a major campaign figure in his wife Senator Hillary Clinton's failed bid for the Democratic presidential nomination. He eventually became a campaign liability, not because he had been impeached for perjury and obstruction of justice by the House of Representatives, but because of his racist insinuations about Senator Clinton's rival, Illinois Senator Barack Obama.
In sum, history teaches that impeaching a president does not threaten political or social upheaval or even the president's political death. However, that does not mean that impeachments should be undertaken cavalierly. Removing the president or vice president from office disturbs the results of a free and fair election, which ordinarily should be honored. But the Constitution makes exceptions, not only via the power of impeachment, but through the authority of the House and Senate to expel members for misbehavior. Nevertheless, an undemanding impeachment yardstick could intimidate presidents from robust assertions of executive powers and reduce them to congressional vassals. One hundred and forty years ago that was a real danger in the impeachment of President Andrew Johnson. His alleged "high crime and misdemeanor," in the eyes of the Radical Reconstruction Congress, was insisting on his Article II right to appoint or dismiss his cabinet, an authority expressly upheld by the U.S. Supreme Court in Myers v. United States (1926). In contrast, the problem that has beset checks and balances for the past 75 years has not been congressional eagerness but reluctance to impeach the president or vice president for crimes against the Constitution. To paraphrase British philosopher Samuel Johnson, a president's knowledge that he will be impeached in a fortnight for usurpations and abuses will concentrate his mind wonderfully on staying within constitutional bounds.
The defense of impeachment inaction because presidential claims of dictatorial powers have no victims is also unpersuasive. Dictatorial claims inflict immediate harm. They hang like the sword of Damocles over any citizen who might contemplate criticizing the Bush administration. They are silenced by the fear of retaliation: They could be detained as unlawful enemy combatants. Their assets could be frozen. Their conversations could be seized and disseminated without judicial warrants. Their homes could be burglarized to gather foreign intelligence. They could be "inadvertent" collateral damage if President Bush should choose to unleash the military in the United States against suspected international terrorists. Bush's assertion of monarch-like powers induces an inert, docile, frightened citizenry — the death knell for democracy.
In any event, some of the Bush–Cheney crimes against the Constitution do feature actual victims — for example, the American citizens who are targeted by the National Security Agency for electronic surveillance in contravention of the FISA, or detained indefinitely without charge or trial as unlawful enemy combatants. Moreover, the president could fatally cripple the Constitution at any time through the imposition of military law. President Bush might announce that his gut instincts have convinced him that thousands of Al Qaeda members are nesting in our midst, and can be detected and apprehended only if civilian law is suspended and the military can search, arrest, and detain at will.
The Founding Fathers understood the folly of waiting to respond until after tyrannical powers have been exerted. The British parliament passed the Stamp Act of 1765, which imposed a tax on every piece of printed paper: ships' papers, legal documents, newspapers, playing cards, and so on. The Founding Fathers successfully protested this taxation without representation. The same day that Parliament repealed the Stamp Act, it passed the Declaratory Act of 1766, which asserted that Parliament "had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever." In response, Thomas Jefferson commented, "By one Act they have suspended the powers of one American legislature, & by another they have declared they may legislate for us themselves in all cases whatsoever. These two acts alone form the basis broad enough whereon to erect a despotism of unlimited extent." The Declaratory Act was predictably followed by the Townsend Acts of 1767, by which Parliament reimposed taxes on the colonies. The colonists soon came to recognize the odiousness of the Declaratory Act's theory of parliamentary power. In the 1775 Declaration of the Causes and Necessity for Taking Up Arms, Congress proclaimed, "By one statute it is declared that parliament can 'of right make laws to bind us in all cases whatsoever.' What is to defend us against so enormous, so unlimited a power? ... They boast of their privileges and civilization, and yet proffer no milder conditions than servitude or death."
President Bush's theory of a unitary executive (which I will explore further at another point) and claims of tyrannical powers are no less dangerous to Americans and no less deserving of rebuke than was the Declaratory Act of 1766. We should learn from our Founding Fathers' example — waiting for the tyrannical axe to drop is foolhardy.
There would be nothing novel about employing impeachment to remove a president from office for making unexercised dictatorial claims. The law is both forward- and backward-looking; it punishes both threatened harms and accomplished harms. The knowledge that dictatorship is an option for the president justifies impeachment because of the clear and present danger to constitutional government.
Excerpted from Constitutional Peril by Bruce Fein. Copyright © 2008 Bruce Fein. Excerpted by permission of Palgrave Macmillan.
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Table of Contents
PREFACE: Who Cares?,
ONE: Impeachment or Executive Despotism,
TWO: What Have Bush and Cheney Done?,
THREE: Looking Backward,
FOUR: Setting the Stage,
FIVE: The Foreign Intelligence Surveillance Act,
SIX: Demonstrating President Bush's FISA Crimes,
SEVEN: Secret Government,
EIGHT: State Secrets — Extraordinary Rendition,
NINE: Military Commissions — Tyranny for the Sake of Tyranny,