Bruce Fein is a constitutional scholar, a lawyer, international consultant with Bruce Fein & Associates and The Lichfield Group. He's also the chairman of the American Freedom Agenda, ... an organization devoted to restoring checks and balances and protections against government abuse. He served in the Justice Department during the Reagan administration as General Counsel of the Federal Communications Commission and has been affiliated with conservative think tanks such as the American Enterprise Institute and the Heritage Foundation, and now writes a weekly column for both the Washington Times and Politico.com. He was oine of those who authored the original articles of impeachment against Bill Clinton. Impeachment.
Thom Hartmann interviews Bruce Fein 18 July 2007
[Thom]: Bruce Fein is with us. Bruce Fein is a constitutional scholar, a lawyer, international consultant with Bruce Fein & Associates and The Lichfield Group. He's also the chairman of the American Freedom Agenda, ... an organization devoted to restoring checks and balances and protections against government abuse. He served in the Justice Department during the Reagan administration as General Counsel of the Federal Communications Commission and has been affiliated with conservative think tanks such as the American Enterprise Institute and the Heritage Foundation, and now writes a weekly column for both the Washington Times and Politico.com. Bruce Fein, welcome to the program.
[Fein]: Thank you for that introduction.
[Thom]: You’re welcome, and we're very pleased to have you with us, and americanfreedomagenda.org, I've spent a little time on your web site and I think it's just great. You (a) describe yourself as a conservative, and (b) you were one of the guys who authored the original articles of impeachment against Bill Clinton, if I have that information correct?
[Fein]: Yes, I think it is conservative philosophy at its finest to be worried about unchecked power; that the fundamental theorem of government propounded by the founding fathers was that since men are not angels, every branch of government needs checks and supervision to avoid extreme abuses of power and folly of the kind we are witnessing in Iraq. The extreme abuses of power can be illustrated by our policy of kidnapping, throwing into dungeons, torturing people and dumping them out abroad. And the founding fathers knew that without any checks, human nature would cause these kinds of abuses; that’s why we need to restore the constitution.
[Thom]: In fact, you were paraphrasing James Madison there, that men are not angels.
[Thom]: So, the specific step that you're recommending as a conservative, as somebody who's been affiliated with the Heritage Foundation, the American Enterprise Institute, all these extraordinary credentials that I shared with our listeners. The specific step that you’re recommending to help us restore constitutional law of the United States is?
[Fein]: Well, there are ten, but let me enumerate the ones that are perhaps most easily understood by your audience:
1. We would end military commissions. Military commissions combine the functions of judge, jury and prosecutor in a single branch - the Executive Branch. I think the last time I encountered that was in the Red Queen in Alice in Wonderland. It's something you might expect in the Soviet Union under Stalin, but everybody knows that if someone accuses you and then puts you on trial, they're likely to find you guilty, because why would they accuse you unless they thought you were guilty in the first place? And there's been no showing that we have a need for these military commissions. They were sat dormant for six years, people are tried before the military commissions for the same crimes they can be tried in civilian courts, and that's one reform that we think needs to go.
A second would be the President's claimed authority to pluck any American citizen out of his home and say, 'you’re an enemy combatant, I'm going to detain you indefinitely in Guantánamo Bay and you have no right to confront your accusers, you have no right to be charged and prosecuted in a court; you just sit there as an enemy combatant and denied access to any court which would be required to prove the factual foundation for your detention'. I mean, this is quite frightening. That is, the President earlier on had plucked, not a citizen, but a resident alien from his home in Illinois, stuck him in the brig and without any charge or accusation has let him rot there for years. A court finally ordered him released, as a what you might call a political prisoner. That case is now in the U.S. Supreme Court. But the President continues to insist he has this power over citizens.
Another abuse that we would prevent would be the President's claimed authority to authorize the National Security Agency to intercept all of our e-mails and phone calls based upon his claims that we’re implicated with al Qaeda.
[Thom]: And enter our homes.
[Fein]: And break and enter homes, open our mail, even kidnap us. The gist of the President's theory of Article Two - that's the article that describes executive power - is that when he says we're at war with terrorism, he then cannot be restrained in any way whatsoever including assassinations, from attempting to gather foreign intelligence. And when he's confronted with, 'well, is there no stopping point? You can commit burglaries, you can do anything, brutalize people, torture people to gather foreign intelligence'. The response is, not that he doesn't have that power, but at present, by his great benevolence, he's not doing it yet, so let's not worry.
Another theory that he has is that he can identify or list you or me or one of organizations we belong to as a foreign terrorist organization based on secret evidence. So persons who had a personal vendetta against us could make allegations to the CIA or to the State Department that we somehow are friendly with Osama; we couldn't ever see any of that and we could be listed as a terrorist and have all our bank accounts frozen and make it criminal for us to engage in any business activity. We think that ought to end.
Another abuse that needs to be addressed is the prospect of prosecuting the media for revealing national security abuses under the Espionage Act of 1917. This administration has taken the argument that the New York Times or the Washington Post, who respectively had published the National Security Agency's illegal domestic surveillance program and the use of secret prisons to torture in Eastern Europe, could be prosecuted as criminals for exposing the criminal activities of the United States government. That seems to me not an acceptable statute to have as a sword of Damocles over the media.
[Thom]: It seems to be the opposite, frankly, of what the founders had in mind when the first amendment was passed and they picked out of all of the thousands of potential industries in the United States, including the arms manufacturing industry, they picked out one industry to specifically protect in the constitution, that being the press; the media.
[Fein]: Yes. They they knew that organized scrutiny of government was essential if democracy and republican form was to flourish, because the government has an inclination to lie. I think President John Kennedy once prescribed a right to lie by government, and for good or for ill you've got to accept that they will embellish the truth. And, of course, we know about the notorious weapons of mass destruction in Iraq that actually weren’t there, and other lies and disseminations designed to destroy enemies as Joseph Wilson and Valerie Plame. And it's equally been true that the administration has blatantly misrepresented the facts on the ground in Iraq after the surge or otherwise. You need the media there in order to check the inclination of the government to lie to you. And that's why we want to encourage their candid and robust reporting.
[Thom]: Bruce Fein, one of the remedies that you have suggested for all of these violations that you have catalogued, and there are more; we'll get into them as we continue to talk in the program, but I wanted to get to this end point right away and then we can kind of work backwards from it. One of the remedies that you have recommended, not so much as a punitive remedy, at least in my understanding of your logic here, but rather as a tool to restore constitutional government, is the impeachment of George W. Bush and Dick Cheney. Am I?
[Fein]: Yes. That is correct. The founding fathers described impeachable offenses as crimes against the Constitution; crimes against the processes of government that they thought were the what we might style the scientific method for coming upon political moderation and political truths. And both the President and Vice President have demonstrated a sneering contempt for any check and balance on their claimed authorities. total disregard for both the written and unwritten rules of constitutional law and separation of powers.
The most recent instances, I suppose, are the President's instructions to Harriet Miers and Sara Taylor. They're not to answer questions, even if they want to, that he says they shouldn't answer relating to the firing of US attorneys and the involvement of the White House. Now, I want your audience and yourself to remember those transfixing days in the spring and summer of 1973 when John Dean, former White House counsel, was recounting chapter and verse of his personal conversations with President Nixon to the Senate Watergate Committee.
[Thom]: He had Harriet Miers job.
[Fein]: Yes, and President Nixon didn't have the audacity to tell John Dean, 'You can't talk', and Nixon was not reluctant to exert executive power. And, of course, that's one of the ways in which checks and balances prevents lawlessness and abuse, because President Nixon was ultimately exposed as complicit in the Watergate cover up and forced from office.
[Thom]: So this guy's gone even beyond Nixon.
[Fein]: And in fact Bush is [cross talk] understanding that, you know, they can tell anybody they want. You've got to shut up to Congress; don't reveal our abuses.
[Thom]: Yeah. We're talking with Bruce Fein, a constitutional scholar, lawyer, international consultant. The web site, americanfreedomagenda.org Bruce, you can stick around over the break, we can continue talking about this?
[Thom]: Bruce Fein is with us, a constitutional scholar, lawyer, international consultant with Bruce Fein & Associates and the Lichfield Group. He also runs americanfreedomagenda.org and has been affiliated with conservative think thanks like the American Enterprise Institute, the Heritage Foundation, writes a weekly political column for the Washington Times and politico.com and was the author of the first articles of impeachment against former President Bill Clinton.
And, Bruce Fein, yesterday George W. Bush signed a brand new executive order. It's titled, "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq", and it says that any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited. In other words, if you and I have a conversation about doing what this order prohibits, that we can be, we're violators of this, and what we would have a conversation about, this is item B, is any, you are guilty if the President, with consultation not with Congress, not even with the Judiciary, but with the Secretary of State and Secretary of Defense; if the President, or the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense, determine that you and I are conspiring to "undermine efforts to promote economic reconstruction and political reform in Iraq".
So if you and I get, and if they determine that we are doing that, they can seize all of our assets; they can freeze our checking accounts, they can stop our credit cards, they can take all our, they can seize our homes, they can take everything; we are immediately rendered for all practical purposes non-persons, if you and I simply have a conversation that they believe is going to harm political reform in Iraq. This is so broad and sweeping, is it not? Or am I being paranoid here?
[Fein]: No, I think that could reach conversations critical of the current government in Iraq; a conversation saying that it's hopeless to think that the United States can succeed in transforming 4,000 years of despotism into a democracy in the next 6 months, anything that they say would undermine the morale of those who were hoping to build Iraq into a democracy in a day could be held to impair or undermine the reconstruction effort and therefore be illegal. It's a little bit like some of our laws during World War 1 that said that if you criticized the war and therefore made persons less likely to accept the draft, then you were guilty of a crime, and Eugene debs went to prison for many years for such a crime, ultimately commuted by Warren G. Harding.
But this is something that again is vastly too broad and sits as a sword of Damocles over all critics of the administrations's Iraqi war follies and is exemplary of this administration's ideas that if you suppress and deter dissent, then you will prevail. That's shown to be false, but they don't learn anything. They're like the French Bourbons; they forget nothing and learn nothing.
[Thom]: Yeah. Bruce Fein, I consider you a conservative in the classic mold of Barry Goldwater, and I'm just curious why your colleagues - your friends at the American Enterprise Institute, the Heritage Foundation, the Washington Times for that matter - why they are so resistant to an idea that you are not just embracing but promoting, which is using the threat if not the actual tool of impeachment against George Bush and Dick Cheney to restore constitutional governance to the United States?
[Fein]: I think there are a couple reasons. One, maybe you're a little bit too broad. I know Norman Ornstein, a friend of mine at the American Enterprise Institute supports what I am doing, and I've got other colleagues like David Keene of the American Conservative Union, Richard Viguerie who is a strong Reagan supporter, and Bob Barr who I worked with to impeach President Clinton on board as well as some others. But there is a very poisonous polarization of politics in the nation and it's thought by many that to do anything that would help the Democrats politically is worse than anything that Bush or Cheney could do.
They are not persuaded by the worry that if Hillary Clinton is in the White House in 2009 these powers could be utilized to beat and brutalize their own political adherents. The mind set of those who are in Washington is generally no more than 3 or 4 hours beyond the current time. Anything longer than that is something they'll worry about tomorrow, like Scarlett O'Hara in 'Gone With the Wind' and I think that explains the reticence to criticize what are clearly preposterous assertions of power that are beyond anything even imagined by King George the Third.
[Thom]: Yeah. In other words, this President has exceeded King George the Third in his assertions of power.
[Fein]: Let me just give one example for your audience.
[Thom]: We'll have to do it right after the break. We've got to take a break right here at the bottom of the hour. But I definitely want to hear that example and I also wanted to ask you if a failure to convict him, either of these guys in the Senate, would mean they were immune from future prosecution because of double jeopardy. So if you can put your those thoughts in your bonnet, and you can stick around with us over the break, right?
[Thom]: Great. Bruce Fein with us, the web site americanfreedomagenda.org.
[Thom]: Bruce Fein is with us, a constitutional scholar, an attorney, chairman of the American Freedom Agenda, americanfreedomagenda.org, an organization devoted to restoring checks and balances and protections against government abuse. He served in the Justice Department during the Reagan administration as General Counsel of the FCC, and has been affiliated with conservative think tanks such as American Enterprise Institute, the Heritage Foundation, and writes a weekly column for the Washington Times and Politico.com. Bruce, you were about to make a point before we went to break and then I wanted to ask you this double jeopardy question. I've got a whole bunch of other questions here too, so fire away.
[Fein]: All right. This, perhaps, is the high water mark of the monarchical like thinking of Bush/Cheney. They assert that all of the world, including every square inch of the United States is a battlefield, and therefore they can order the military of the United States to shoot a rocket, throw hand grenades, to use AK47s to kill anybody they think is al Qaeda or al Qaeda-affiliated. If that wrong, if that decision is erroneous, that's collateral damage. But what their theory of the current war of terrorism is about is making where you are sitting and I'm standing a battlefield where the military can come in and shoot and destroy if they have some ground that they say suggests we're implicated with al Qaeda. That is a frightening exercise of military jurisdiction beyond anything conceived of any previous ruler of all of the world, including Julius Caesar.
Now, with regard to double jeopardy, no. Impeachment and conviction in the Senate, removal from office, is not a criminal punishment in the eyes of the founding fathers. After removal, anyone, President, Vice President, would still be vulnerable to criminal prosecution. You may recall that's the reason why President Ford pardoned Richard Nixon, because he was vulnerable to indictment by then Special Prosecutor Leon Jaworski.
[Thom]: Right, but he had not been impeached. I thought an impeachment and a trial in the Senate, I mean if you have a trial in the Senate, even if he's exonerated, and apparently he would be right now, I mean, if they can't get enough votes to stop the war in Iraq I don't think they could get enough votes for impeachment in the Senate or for removal from office, excuse me. But even if he's exonerated in the Senate, as Bill Clinton was, isn't he...?
[Fein]: No, that's not true, double jeopardy...
[Thom]: Isn't that considered a trial?
[Fein]: No, no, double jeopardy is viewed as jeopardy twice for a criminal prosecution.
[Thom]: I see.
[Fein]: Impeachment is not viewed as a criminal prosecution and therefore you can do a second time.
[Thom]: OK, well that's great to know... Really, I've been saying on this program for some time now that I support impeachment of Bush and Cheney not because that I think that they are bad guys, although I do, not because I think that they've done terrible things, although I do, and certainly not for political reasons. You know, that would be a travesty, in my opinion, but because I don't see any other way, barring some really dramatic action by Congress like defunding the Office of the President and the Vice President, I don't see any other way to roll back these clear and blatant violations of the constitution that these guys have undertaken. Are there other remedies, in your opinion, Bruce Fein?
[Fein]: Well, there are potential remedies if they would obey the laws that are passed. But remember President Bush insists that he can sign a bill and then ignore the parts that he says are unconstitutional and so that makes some of the remedies that Congress might undertake rather futile. But there are some measures that can be done short of impeachment that would be helpful. Congress can, by statute, eliminate military commissions. Congress can use the power of the purse to prevent any spying on us that is contradictory to the Foreign Intelligence Surveillance Act. Congress can use the power of the purse to prevent any utilization of the executive power to identify people as terrorists with based on secret evidence.
So there certainly is sufficient authority in Congress, if they wish to exert it, to correct or to corral in many of the abuses. The problem is, Congress hasn't been willing to undertake that kind of aggressiveness and been rather timid and more like spectators watching rather than performing their constitutional role of oversight.
[Thom]: Doesn't this imply, Bruce Fein, that Congress doesn't understand the issue in the context that you and I are describing it and rather, they're concerned that either they think that an impeachment proceeding would be a political event, or they are concerned that it would be perceived as one?
[Fein]: Yes, I think, I'm up there every day in Congress, and the ignorance that the typical member has about the constitutional philosophy and checks and balances is staggering and stunning; probably less than a high school student who can pass a civics test. So they do not appreciate how their role is being reduced to wallpaper and other than having an occasional appearance on CSPAN, they decide virtually nothing of importance, because the President is asserting the prerogatives of the Legislative Branch, the Judicial and the Executive Branch all at once.
And they do, because the shallowest think, well, if we attack the President, we'll be seen as partisan. I think this is the attitude of Nancy Pelosi, the Speaker of the House, and we might lose our majority in 2008 because if we're viewed as partisan and weak on terrorism and go after Bush for his abuses, at least if he if he wraps himself in a patriotic flag we don't know really how to describe the menace he's creating to the constitution and therefore we'd just rather be silent.
[Thom]: To a certain extent this seems to track back, in my mind, to the 1980s. During the 1980s there was a concerted effort by people who at least call themselves conservatives to go after public school text books, particularly civics textbooks and teachers, particularly unionized teachers, who were teaching American history and civics in our schools the, Reagan for all practical purposes suspended enforcement of the Sherman Anti-Trust Act.
The publication of school books was consolidated into the hands of basically two corporations, both of them in Texas, that print the majority of school books in the United States now, and civics was turned into 'memorize the date' rather than 'understand the nature of this country' as this sort of, you know, political correctness swept the nation. All this fear and hysteria that civics teachers and American history teachers were talking about folks like Joe Hill, you know, or the Wobblies or whatever, and now with No Child Left Behind, again, you know, it's even getting worse.
We have, and it continues, I mean, David Horowitz is trying to do the same thing now in college campuses. We have a generation, this is larger than just Congress, I mean we've got members of Congress who never studied civics in high school or in college and we have an entire generation of people who don't understand these fundamental issues we're discussing. How do we fix that problem, and what makes you think that impeachment of Bush and Cheney will be perceived in a more constitutional context than Congress, for example, trying to defund some of the more egregious offences that they're committing against the constitution?
[Fein]: Well, I can't be overly optimistic, but I won't be pessimistic either. Some times the American people surprise you, but there is no guarantee. Impeachment can be used as a schoolroom for understanding the Constitution and why the President and Vice President need to be removed, because they can't be trusted with the exercise of presidential prerogatives. But it might not be, depending upon how the members themselves behave. I think the problem that you've identified is the correct one. It isn't just limited to Congress because they're a proxy of the general population, neither better nor worse generally speaking. If anything, worse. But this long term deterioration of understanding the Constitution stems back perhaps at least 50 years if not more. And it's continued whether the administration's been Democrat or Republican in the White House or in Congress.
There is no longer even, children who are instructed to read, you know, they do video games. They're on the Internet but they don't understand and they don't take advantage of the opportunity to master any of the great philosophers and theorists who gave us liberty and freedom from the grasp of tyranny and feudalism. And unless you have a society that rewards and gives social esteem to people who appreciate these values and urge their enactment and retention, that they appreciate more Britney Spears or Mike Tyson or Koby Bryant, this country is in deep trouble. It was Thomas Jefferson who said, "any nation that hopes to be free and ignorant hopes what never was and never will be", and I think he got it right.
[Thom]: Yeah. Three quick questions, and let me just lay them out, because we have about two minutes left here, and you can pick from them and take a shot at them. Number one, how is, with the impeachment of Bush, be different, Bush and Cheney, be different from the impeachments of Bill Clinton and Andrew Johnson? Number 2. How have Spain, Germany, Italy and England held on to their civil liberties in the face of terrorist attacks? In Spain from ETA, in Germany from the Bader Meinhof gang, in Italy from the Red Brigades, in England from the IRA , how have they held on to their civil liberties in the face of terrorist attacks when we have not? And 3, what is a constitutional crisis? I've had a number of legislators on this show who seem to believe that impeachment would be a constitutional crisis. It seems to me like that's confusing the remedy with the disease.
[Fein]: Yeah. Well let me try to go at an allegro rather than an adagio pace.
[Thom]: We have about a minute left, I'm sorry.
[Fein]: First, the impeachment of Cheney and Bush is different than Andrew Johnson and Bill Clinton because it represents a systematic assault on our entire constitutional system for diffusing and exercising power. It's not any isolated instance of wrong doing like Clinton's perjury or obstruction. And with Andy Johnson it really was a Congressional abuse they punished him for asking whether or not he was being correct in his understanding that he had authority to remove the Secretary of War.
With regard to these other European countries, they have kept their civil liberties in many respects because their executive authorities are far less than our President of the United States. They have parliamentary systems. Parliamentary systems are collective decision-making. Moreover, they don't have global responsibilities that end up in running warfare that automatically increases dramatically the authority of the chief executive. That's why James Madison said, "we need to make it difficult to go to war because the executive will inflate danger because war always increases his power". With regard to the third question, could you repeat it quickly?
[Thom]: Sure, yeah, I've had a number of legislators on who say, you know, we don't ... constitutional crisis.
[Fein]: Oh, it's OK, I understand that. The fact is, we undertook the impeachment of Nixon and we ran the legislative process simultaneously. We can chew gum and walk at the same time. We've shown that in prior impeachment proceedings. There is no, you point out the real danger is that we let our constitution collapse and say it's more important to think about a minimum wage, or school vouchers than getting the constitution right. If that's the attitude we have, the constitution will collapse and all these other issues will become irrelevant.
[Thom]: Yeah, and becomes secondary. Very, very well said. Bruce Fein, I want to thank you so much for sharing as much time as you have with us today.
[Fein]: Thank you so much.
[Thom]: It's Bruce Fein. The web site is americanfreedomagenda.org. Bruce Fein, a constitutional scholar, lawyer, international consultant with Bruce Fein & Associates and the Lichfield Group, also writes for the Washington Times and politico.com.
You can hear an archive of the entire interview at KPOJ.