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 Editorials | Opinions | December 2006 
Congress Must Insist Bush Isn't Above Law
 Jesse Jackson - Chicago Sun-Times
Should President Bush be impeached? The very idea seems extreme, if not loony. Incoming House Speaker Nancy Pelosi has explicitly ruled impeachment off the Democratic majority's agenda. But activists and legal scholars are organizing to pressure Democrats to begin impeachment hearings. And the incoming chair of the House Judiciary Committee, Rep. John Conyers, has issued two remarkable studies on abuses of presidential authority, raising the question of impeachable offenses.
The Gingrich Congress' attempt to railroad President Clinton out of office gave impeachment a bad press. It is scorned as irresponsible, vindictive, partisan spitball politics. Rather than addressing the challenges the nation faces, impeachment, many pundits argue, wastes months on harsh, divisive wrangling. And of course, in 1998, the public punished Republicans - ultimately leading to the toppling of Gingrich himself.
But in the current circumstances, the question isn't merely rhetorical or partisan. While in office, Bush and Vice President Dick Cheney have asserted an extraordinary array of extra-constitutional powers. Bush argues that he has the right to declare war on his own. He claims he can designate any American an "enemy combatant." For those under that suspicion, he claims the right to wiretap them without warrants, arrest them without charges, detain them without lawyers, torture them without judicial review and hold them until the war ends. He also says that neither Congress nor the public has any right to review his decisions, or to gain access to the papers that he chooses to keep secret. Because Bush himself says the war on terror will last for decades, the scope of this assertion is staggering.
Bush and his men drove us into the war of choice in Iraq, distorting intelligence to gain public support and undermining our credibility across the world. His policies led directly to the disgraces of Guantanamo Bay and Abu Ghraib. His assertions have trampled the rights of American citizens, as well as those from other countries. Lack of accountability squandered billions in taxpayer dollars on waste, fraud and abuse of major contractors in Iraq. The list goes on.
Bush's remarkable assertions would make the president an elected king. That is not what the founders intended. They wrote the Constitution to create a system of checks and balances to limit presidential power. They gave Congress the right to declare war, arguing that "no one man" should ever have that power in a republic. They passed the Bill of Rights to guarantee rights to the people.
How do we hold presidents accountable when they trample these limits? Presidents cannot be indicted. They are immune from civil lawsuits on the basis of their official actions. The only recourse in the Constitution is impeachment.
The Democratic Congress has a duty to the Constitution to investigate Bush's claims to be above the law. Conyers may well put off any consideration of impeachment - but he has a duty to convene serious hearings on the scope of the president's claims, the abuses to the Constitution and to citizens resulting from those claims, and the remedies to them.
Whether we're Republican or Democrat, conservative or liberal, we all should support defending our Constitution. We need a careful consideration of whether the Constitution can or should be changed in the light of the threats we now face. If it is to be changed, then surely it should be changed by amendment, not by the unilateral acts of a president. If changes are not needed, then Bush's claims must be clearly rejected.
What if the president and his administration refuse to cooperate with Congress in this inquiry? What if they deny access to all documents, refuse to testify and issue "signing statements" stating that the president will not abide by the laws that Congress passes? Then the Constitution offers only two options: Vote the president out of office, and Bush is due to depart in 2009. Or impeach Bush for high crimes and misdemeanors. In my view, it should not come to that - but Congress must act to defend the Constitution before America turns completely into an elected dictatorship.
Conservative for Impeachment
Brian Gilmore - The Progressive
Tuesday 05 December 2006
Bruce Fein reminds me of Jerry Lewis playing Professor Julius Kelp in the 1963 comedy classic The Nutty Professor. Intellectually astute and quick-witted, Fein, like Lewis as Kelp, is underestimated because of his peculiar style.
But the stakes are too high to dismiss Fein simply for being didactic or eccentric. In fact, he's breaking conservative rank to defend our Constitution.
Fein has a solid Republican résumé. He served as an associate deputy attorney general in the Reagan Administration, where he helped formulate conservative arguments on key legal issues that are still current today. He had stints as a resident scholar at the Heritage Foundation and an adjunct scholar at the American Enterprise Institute. He also writes a regular column for The Washington Times newspaper, one of the country's leading conservative dailies.
But his bona fides don't end there.
He has trashed the Roe v. Wade abortion decision, stating that it required a "hallucinogenic intellectual flight" on the part of Justice Harry Blackmun to draft the opinion. "President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Robert H. Bork," he wrote in Washington Lawyer in February 2005. He voted for Bush in 2000 and 2004, and he applauded the nomination of John Roberts as Bush's "finest hour."
So why has Fein been collaborating with the ACLU and providing damning testimony to the Senate about President Bush? Why is he for censuring the President and even, perhaps, impeaching him?
This is what did it: The disclosure that the National Security Agency (NSA) is engaged in the domestic wiretapping of American citizens in the United States without first obtaining warrants. The Bush Administration had crossed the line. Within twenty-four hours, Fein went into constitutional combat mode. And he hasn't stopped since.
For Fein, there is nothing really to debate; the law is settled. In 1978, Congress passed the Foreign Intelligence Surveillance Act, or FISA, permitting the government to conduct electronic surveillance on citizens in the United States if it first gets a warrant from the FISA court, which exists for that reason only. The FISA court rarely has denied such a request.
But the NSA has repeatedly conducted such surveillance without going to the FISA court for warrants. Every forty-five days, President Bush has been issuing Executive Orders saying that it is within his authority to bypass the FISA court. And he says he'll keep doing so.
"There is not a single Supreme Court case that insinuates that the President can violate a federal statute in order to gather foreign intelligence," Fein tells me. "It was a flagrant violation of the Constitution, which I feel that citizens as well as the government have a duty to defend."
Fein cites the 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer as support for the proposition that the President does not have "inherent authority" to bypass legislative enactments of Congress in a time of war.
In the Youngstown case, President Harry Truman cited his "inherent authority" and attempted to seize a steel mill during the war in Korea. The court mashed him back.
FISA, according to Fein, also reins in the President because it has never been overturned or held unconstitutional. It is the law, according to Fein, and if it can be disobeyed, why is the FISA court still in operation today?
"The warrantless surveillance program," Fein stated before the Senate Judiciary Committee back on March 31, "justifies censure." He testified that the President is "seeking to cripple the Constitution's checks and balances" by bypassing the FISA court. And Fein said that Bush's rationales "would reduce Congress to an ink-blot in the permanent conflict with international terrorism. The President could pick and choose which statutes to obey in gathering foreign intelligence and employing battlefield tactics on the sidewalks of the United States." Fein denounced "President Bush's contempt for the rule of law and constitutional limitations."
On August 17, federal Judge Anna Diggs Taylor issued a strong ruling against the surveillance program. The verdict came under attack from a number of Republicans for being too harsh on the Bush Administration. Not from Fein, though. In an August 29 op-ed in The Washington Times, he said Taylor "too weakly condemned" the program, which he deemed as "flagrantly illegal."
Strong words. But he had even stronger ones when he testified to the Senate on June 27 about President Bush's signing statements - more than 750 of them, according to The Boston Globe. These are, in effect, asterisks that the President places next to his name when he signs a bill into law. As Fein explained, under the Constitution, the President has only two choices: Sign a bill and see that the law is properly executed, or veto the bill. But time and again, President Bush has added a signing statement that says he will enforce the law only to the extent that it doesn't interfere with his duties as commander in chief or his power as the unitary executive or his interpretation of the Constitution.
Noting that President Bush's signing statements "have multiplied logarithmically," Fein testified that they "flout the Constitution's checks and balances and separation of powers. They usurp legislative prerogatives and evade accountability." Fein said they amount to an impermissible line-item veto.
"If all other avenues have proved unavailing," Fein testified, "Congress should contemplate impeachment.... The epitome of an impeachable offense, as Alexander Hamilton amplified in the Federalist Papers, is a political crime against the Constitution."
Fein believes that President Bush is engaging in a power grab of the gravest dimension. "The Republic is withering in foolish imitation of Rome," Fein wrote in The Washington Times after Congress approved the Military Commissions Act.
When I ask Fein if he has received any serious flak from other conservatives for his sustained criticism, he admits some of his ideological homies are perturbed.
"To sort of borrow a phrase from President Clinton," Fein says laughing, "it depends upon what the meaning of the word 'flak' is."
Brian Gilmore is a poet, lawyer, and author of Jungle Nights and Soda Fountain Rags: Poem for Duke Ellington. |
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