Three examples from October undermining the public good.
December 2006 Issue
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.”