Democrats must restore our constitutional balance

Democratic presidential candidate Barack Obama (photo: Barack Obama via Flickr.com)

The great political scandal of the last seven years has been not only the fact that President Bush has introduced a range of unconstitutional policies — warrantless wiretaps, extraordinary rendition, suspension of habeas corpus not only for detainees at Guantanamo Bay but even for American citizens arrested in this country, etc. — but that the Congress, even after Democrats gained control of both houses in January 2007, did almost nothing to stop him.

Some of the strongest opposition to Bush’s litany of constitutional abuses has come from principled conservatives like Bruce Fein, author of the new book Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. In an online discussion about that book, Glenn Greenwald, a Salon columnist and best-selling author who is a former attorney, describes what happened in the aftermath of the New York Times’ publishing a story revealing that the National Security Agency (NSA) was engaging in wiretapping of phone calls by American citizens without obtaining warrants:

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 [Foreign Intelligence Surveillance Act] 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. …

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 have 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.

I agree completely, but it’s also worth noting why this is true.

The political right (as opposed to the intellectual right, like Fein) has been so successful with its demagogic declaration that anyone who dares to question presidential authority in times of war or national peril is unpatriotic that the political left (as opposed to the intellectual left, like Greenwald) remains largely silent in the face of such abuses out of fear of being portrayed as soft on terrorism (or in earlier times, soft on communism) when campaigning for re-election.

That’s why only one person in the entire Senate, Democrat Russ Feingold of Wisconsin, dared to vote against the Patriot Act. Indeed, he was the only senator to object to passing the bill by unanimous consent without either debate or amendments.

It’s also why very few Democrats stood up in the face of a dishonest marketing campaign for the war in Iraq or defended the clearly stated constitutional authority granted solely to Congress in declaring war. This has nothing to do with principle, but with cold political calculation that one dare not seem to be weak when the public is demanding strength.

Only after the war became politically unpopular did significant numbers of Democrats speak out against it. That leads to an obvious question: Now that the political tide appears to have turned against the Republicans, will the Democrats do anything to restore our constitutional balance?

Fein, a prominent conservative legal scholar and former high official in the Reagan Department of Justice, participated in the discussion and laid out his priorities for what the new Congress should do to prevent such abuses in the future:

(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.

He is also helping draft legislation that “would make it a criminal offense for the President to initiate war without prior congressional direction or to deceive Congress into authorizing war by inflating foreign danger.” That’s a good start. I would add to that list a prohibition on invoking executive privilege or the state secrets privilege in any court case challenging any actions taken by the executive branch. (Bush has invoked the state secrets privilege in every case where any action even remotely related to the war on terror has been challenged.)

But if Obama is elected and the Democrats continue to have control of the House and Senate, as now seems likely, what are the chances that they will give up the power they ceded so spinelessly to George W. Bush? Fein is not optimistic:

I do not expect a President Obama to yield back power to Congress. No President has surrendered power voluntarily, and Obama has not campaigned with a pledge to renounce signing statements, power to unilaterally initiate war, or the power to withhold information from Congress. My personal contacts among Democrats in Congress is that the majority were complacent with the Bush-Cheney usurpations because they believe Obama will give them their powers back. As Shakespeare said, the wish is father to the delusional thought.

Unfortunately, I agree with Fein.

Obama’s flip-flop on the FISA “compromise” (read: total cave to Bush) and the absurd arguments he made to defend that flip-flop do not give me confidence. If McCain is elected, we have no reason to believe that he would do anything at all to give up the power Bush has seized at the point of a rhetorical gun. But Obama, who taught constitutional law, should know better and should be held to account if he fails to do so.

If elected, Obama will have a historic opportunity to restore both the separation of powers and the checks and balances and, without being too dramatic, to save our constitutional system. Until now, a Democratic Congress has had no real chance of doing so because Bush would have vetoed any bill that tried to remove the prerogatives he demanded, and they did not have the votes to override such a veto. But with Obama in the White House and Democrats in control of the House and Senate, there will be nothing to prevent the actions that Fein suggests for the next administration:

The new AG [Attorney General] should investigate and prosecute Bush, Cheney, and persons with command responsibility over the executive branch with complicity in torture and criminal violations of the Foreign Intelligence Surveillance Act. Obama should disclose every American citizen who was illegally surveilled by Bush-Cheney in violation of FISA to afford them the opportunity to sue for damages under the statute. If Obama does neither, then we are back to the French adage –- the more things change, the more they stay the same.

I could not agree more. The oath of office required of each person elected to Congress has, since 1862, required him to pledge to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” We must not allow the pursuit of enemies abroad to justify ignoring the actions of domestic enemies of the Constitution. Nor can we allow Congress to ignore their oath and not take action. We must be active in pressuring the next president to cede back the authority illegally taken by the Bush administration and restore the safeguards the Constitution provides against such despotism.

If elected, Obama will have the full ability to ensure that this happens. He doesn’t have to wait for Congress to do so. He can initiate the process himself and submit a bill to do all of the things suggested above. He can instruct his attorney general to rescind all legal opinions by the Office of Legal Counsel that provided cover for a long list of crimes, and Obama can empower him to pursue criminal charges against those who committed those crimes.

If Obama does so, I will forgive him for his reversal on FISA and view it as a politically convenient position designed to get him into office so he could reverse the damage; if he doesn’t, he will reveal himself as just another politician seeking power over principle.