A Conservative for Impeachment
Gilmore, Brian
A Conservative for Impeachment By Brian Gilmore Illustration by Sako Shahinian Bruce Fein reminds me of Jerry Lewis playing Professor Julius Kelp in the 1963 comedy classic The Nutty Professor....
...Why is he for censuring the President and even, perhaps, impeaching him...
...The warrantless surveillance program," Fein stated before the Senate Judiciary Committee back on March 31, "justifies censure...
...But his bona fides don't end there...
...Fein denounced "President Bush's contempt for the rule of law and constitutional limitations...
...In the Youngstown case, President Harry Truman cited his "inherent authority" and attempted to seize a steel mill during the war in Korea...
...Brian Gilmore is a poet, lawyer, and author of "Jungle Nights and Soda Fountain Rags: Poem for Duke Ellington...
...Fein said they amount to an impermissible line-item veto...
...If all other avenues have proved unavailing," Fein testified, "Congress should contemplate impeachment...
...Not from Fein, though...
...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...
...In an August 29 op-ed in The Washington Times, he said Taylor "too weakly condemned" the program, which he deemed as "flagrantly illegal...
...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...
...On August 17, federal Judge Anna Diggs Taylor issuedastrong ruling against the surveillance program...
...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...
...And Fein said that Bush's rationales "would reduce Congress to an ink-blot in the permanent conflict with international terrorism...
...It was a flagrant violation of the Constitution, which I feel that citizens as well as the government have a duty to defend...
...Intellectually astute and quick-witted, Fein, like Lewis as Kelp, is underestimated because of his peculiar style...
...They usurp legislative prerogatives and evade accountability...
...Fein believes that President Bush is engaging in a power grab of the gravest dimension...
...The epitome of an impeachable offense, as Alexander Hamilton amplified in the Federalist Papers, is a political crime against the Constitution...
...So why has Fein been collaborating with the ACLU and providing damning testimony to the Senate about President Bush...
...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...
...Fein has a solid Republican r?sum...
...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...
...Strong words...
...He testified that the President is "seeking to cripple the Constitution's checks and balances" by bypassing the FISA court...
...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...
...And he says he'll keep doing so...
...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...
...Every forty-five days, President Bush has been issuing Executive Orders saying that it is within his authority to bypass the FISA court...
...Noting that President Bush's signing statements "have multiplied logarithmically," Fein testified that they "flout the Constitution's checks and balances and separationofpowers...
...He also writes a regular column for TheWashington Times newspaper, one of the country's leading conservative dailies...
...Within twenty-four hours, Fein went into constitutional combat mode...
...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...
...And he hasn't stopped since...
...To sort of borrow a phrase from President Clinton," Fein says laughing, "it depends upon what the meaning of the word 'flak' is...
...The FISA court rarely has denied such a request...
...The Republic is withering in foolish imitation of Rome," Fein wrote in The Washington Times after Congress approved the Military Commissions Act...
...Buthehad even stronger ones whenhetestifiedtothe Senate on June27about President Bush's signing statements-more than 750ofthem, according to The Boston Globe...
...The verdict came under attack from a number of Republicans for being too harsh on the Bush Administration...
...In fact, he's breaking conservative rank to defend our Constitution...
...The court mashed him back...
...But the NSA has repeatedly conducted such surveillance without going to the FISA court for warrants...
...FISA, according to Fein, also reins in the President because it has never been overturned or held unconstitutional...
...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...
...It is the law, according to Fein, and if it can be disobeyed, why is the FISA court still in operation today...
...He voted for Bush in 2000 and 2004, andhe applauded the nomination of John RobertsasBush's "finest hour...
...the law is settled...
...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...
...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...
...But the stakes are too high to dismiss Fein simply for being didactic or eccentric...
...For Fein, there is nothing really to debate...
...The Bush Administration had crossed the line...
...He had stints as a resident scholar at the Heritage Foundation and an adjunct scholar at the American Enterprise Institute...
...These are, in effect, asterisks that the President places next to his name when he signs a bill into law...
Vol. 70 • December 2006 • No. 12
