After The New York Times, in December, 2005, revealed that the NSA, under George Bush’s directive, had been eavesdropping on Americans citizens for years without the warrants required by law, very few commentators, and even fewer politicians, were willing to state the true meaning of what had been revealed: namely, that this was a flagrantly criminal act — a felony — punishable under FISA by 5 years in prison and a $10,000 fine for each offense. Even more significantly, that revelation, more than any which preceded it, conclusively demonstrated the true face of the Bush presidency: a lawless regime which, in secret, had literally adopted a theory of executive power that vested the President with one of the definitive powers of a tyrant — the right to float above the law and to violate it at will.
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 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.
One of the very rare exceptions to this craven lack of principle and cowardice was — and remains — Bruce Fein, a Harvard-trained constitutional lawyer, a long-time ideological conservative, and a former official in the Reagan Justice Department. While most of his fellow conservatives were defending anything and everything George Bush did, and most establishment Democrats were running away from these issues as fast as their scared little legs could carry them, Fein became one of the most eloquent and uncompromising defenders of our country’s constitutional values in the face of a coordinated onslaught led by Dick Cheney’s office and the Bush DOJ. Fein, to my knowledge, was the first prominent political figure to declare — in a December 27, 2005 Washington Times column that has aged exceptionally well — that Bush’s FISA lawbreaking was not only a threat to our republican principles, but was an impeachable offense, and he further argued that Congress had not the option, but the Constitutional duty, to impeach the President if the lawbreaking did not cease immediately:
Volumes of war powers nonsense have been assembled to defend Mr. Bush’s defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself. . . .
Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution’s separation of powers is too important to be discarded in the name of expediency.
As further revelations of anti-democratic policies emerged — involving torture, rendition, due-process-less detentions and a whole slew of frivolous legal theories to shield the President’s behavior behind a wall of secrecy — Fein has remained one of the nation’s most relentless and tenacious critics of the Bush administration’s assault on our Constitution, as well as the inexcusable Congressional abdication in the face of this assault. He worked with Sen. Russ Feingold on the Wisconsin Senator’s resolution to censure Bush for violating FISA, and most of all, he has repeatedly urged that Congress fulfill its constitutional obligation by pursuing impeachment proceedings against this incomparably lawless President.
Fein has now made perhaps his most important contribution yet to the cause of defending the Constitution and the rule of law: his newly released book, Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. As the title suggests, Fein argues and richly documents that, primarily as the result of the last eight years, America’s constitutional form of government is in imminent danger of extinction. Employing both his substantial constitutional expertise and his penchant for describing complex legal issues in clear and easy-to-understand terms, Fein details how the crux of our Constitutional guarantees have been gutted –not only by a lawless and power-grabbing administration, but also by a Congress that has allowed it to happen and, at least as much, by an American citizenry that has been tragically indifferent to safeguarding the liberties which the Founders guaranteed.
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 has 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.
The central project of Fein’s book is to examine the likelihood that these trends can be reversed. What, he asks, are the prospects for restoration of the Constitutional system that has served us so well for the last two centuries? The answer is one that most readers will be unhappy to hear, though there is little doubt that his answer is realistic. With a citizenry that has proven itself largely indifferent to these matters, a presidential election that has ignored them almost completely, and the general tendency of political officials — no matter how well-intentioned — to expand rather than contract their own power, Fein argues that, absent some unforeseeable and extraordinary changes, this erosion of our Constitution is likely to continue rather than abate, no matter who is in power.
Though pessimistic, Fein is not without hope — as evidenced by, at the very least, the fact that he has written this book, and has generally continued his forceful advocacy in defense of the rule of law. Within Fein’s grim assessment of where we are and are likely to go lies the template for persuading our fellow citizens of the urgency of these matters. As Fein recognizes, political institutions will respond to public will. It is that public will whichmust be galvanized, and Fein’s book is a vitally important tool in that cause.