Peril: The Life and Death Struggle for Our Constitution and Democracy
The presidential election is almost upon us, and
the candidates have been talking about all sorts of critical issues, such as
who wears a flag pin, pays for travel for a candidate's children, associates
with bad people, and is friends with Joe the Plumber.
Actually, there are more important issues at stake. In Constitutional Peril,
Bruce Fein, a former Reagan administration appointee, warns that the very future
of constitutional governance is at stake. The problem is not a threatened attack
from without, but the erosion of limits on government and safeguards for liberty
from within. He reminds us that "Eternal vigilance is the minimum price
of liberty," but the state of the presidential campaign is merely additional
evidence that the American people, and most of those seeking to lead them, are
anything but vigilant. He laments: "The probability that the current tides
daily eroding the constitution can be reversed is slim."
starts with a bang. He advocates impeaching the president or risk "a degeneration
of the US Constitution into executive despotism." Strong language, but
the powers claimed by the Bush administration have been extraordinary.
Indeed, the president contended that the Authorization for Use of Military
Force (AUMF), approved by Congress in the aftermath of the terrorist attacks
of 9/11, also gave him essentially any power short of going to war, such as
warrantless surveillance of American citizens and designation of American citizens
as enemy combatants.
Fein takes his analysis a frightening step further. If the president's argument
is correct, what power does he not possess? Fein writes:
"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 US invasion of 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."
This is America?
President Bush has not gone so far to level suburban neighborhoods across America,
but it is the theory under which he has been governing. Thus, according to this
administration, explains Fein, "if a power can be classified as 'executive,'
then neither the legislative nor judicial branch may regulate, oversee, or check
the president's actions." It is, frankly, a preposterous argument, contradicting
the intentions and actions of America's Founders. They drafted the Constitution
to disperse power to ensure that it was always checked, bounded, and constrained.
How, asks Fein, "is President Bush's unitary executive theory different
Even the war power, so closely associated with the president, is divided. Congress
is to decide on whether there is a war for the president to manage. Congress
establishes the military. Congress approves the rules of war. Congress provides
the funding for war. In short, Congress is the dominant player even in this
area. But not in the view of the Bush administration, and its legal acolytes
within the conservative Greek Chorus.
Yet despite abuses so obvious and pervasive, Congress, under both Democratic
and Republican control, has done little to restrain the executive branch. Rather,
Fein notes, "Congress has augmented the Bush-Cheney embrace of despotic
powers through the Military Commissions Act of 2006, the Protect America Act
of 2007, the Foreign Intelligence Surveillance Act Amendment of 2008, and the
John Warner National Defense Authorization Act of 2006."
This explains Fein's extreme pessimism. Congress has the constitutional authority
to check the executive, but it lacks the political will. Even worse, the American
people seem disinterested in protecting their liberties. Notes Fein: "the
American people are more culpable than Congress over the nation's constitutional
peril because they have declined to exercise their right to vote or their First
Amendment right to petition Congress for a redress of grievances to demand corrective
legislation or impeachment to end the Bush-Cheney transgressions."
An air of near desperation pervades Constitutional Peril. Fein details
prior precedents of executive branch lawlessness. He parses the complicated
controversy over the Foreign Intelligence Surveillance Act, originally approved
by Congress to limit prior presidential misconduct but ignored by President
He spends a chapter on the critical topic of government secrecy, so important
for the executive branch to hide illegal behavior. He notes: "President
George W. Bush has reveled in secret government by invoking executive privilege
or state secrets to frustrate congressional or private oversight of executive-branch
actions – for example, the manipulation of US attorneys to skew law enforcement
or secret spying programs that invade the privacy of Americans and, in the case
of the Terrorist Surveillance Program (TSP), are flagrantly criminal."
He also discusses "extraordinary rendition," by which the US turns
people over to allied states to be tortured, as well as military commissions,
which have won few convictions despite being designed to ensure prosecution
victories. The point is not that the government cannot defend America from people
who mean the country ill, but that the steps taken must be consistent with American
law and principles, and should be effective. Most foolish of all have been policies,
such as torture, which have yielded little security gain while wrecking America's
Fein's judgment of the Bush administration is harsh, but no other conclusion
is possible. Who else – whether Abraham Lincoln, Woodrow Wilson, Franklin Delano
Roosevelt, Lyndon Johnson, or Richard Nixon – has come close in executive misconduct?
"President Bush has kidnapped, imprisoned, and tortured suspected terrorists
abroad. He has created a climate of lawlessness in the executive branch, which
emboldened CIA officials to destroy interrogation videotapes sought by the 9/11
Commission or Congress that probably provided ocular evidence of torture. He
has signed bills passed by Congress while announcing his intent to disregard
provisions that he maintains are unconstitutional – for example, a provision
denying funds to establish permanent military bases in Iraq. He has asserted
the power to break and enter homes, open mail, kidnap and torture to gather
foreign intelligence without review by any other branch. He has tacitly declared
that every square inch of the United States is a battlefield appropriate for
military force and military law because al-Qaeda hopes to kill Americans anywhere,
and terrorists can blend into civilian populations."
All the while the president's policies actually have made Americans less safe.
Quite an achievement for not yet eight years in office. Although Fein occasionally
ranges over the top – for instance, he compares the philosophies of the bloody
Grenadian dictator Maurice Bishop and President Bush – our republic truly is at
risk. The danger comes not from the usual ruffians at the extremes of the political
system, but seemingly respectable politicians, activists, and bureaucrats who
insist that their powers must be enhanced and our freedoms must be sacrificed
in order to protect us from dangers that only they recognize and understand.
It is the same Siren call heard throughout history that has led to the destruction
of so many liberal societies.
Ultimately, the American people can't rely on anyone but themselves to preserve
their liberty. Writes Fein: "Everyone in a democracy is thus burdened with
a moral duty to act as a sentinel for the liberty of everyone else. At present,
the majority of citizens are neglecting their duty."
If not us, who? If not now, when? The time to act is short. Fein presents an
emergency manifesto that should be heeded by all patriots and lovers of liberty.