House, constitutional lawyer Bruce Fein has a lot to say about the assault under way on the safeguards America's founders created to keep the nation free. Fein has been around the block a few times in Washington. He has argued cases before the Supreme Court, so he understands the importance of saying all that needs to be said while the clock is running. On this particular morning he is speaking at a Gilbert-and-Sullivanesque pace, trope after pressurized trope, delivering a magisterial defense of a Constitution under attack by Vice President Dick Cheney.
"Dick Cheney exercises all the powers of the presidency," Fein says. "He has great contempt for Congress. You can get pretty cynical about Congress. Some of these people are yahoos. But that's not the point. You don't have to be brilliant to provide the checks and balances. You just need the constant questioning, the restraint."
Fein dismisses Cheney's argument that Congress overreached when it requested the names of participants in his energy task force meetings. "Bogus" and "Specious," he says. He's equally dismissive of the administration's defense of its warrantless wiretapping. "This is a crime," Fein states flatly. "FISA says if you operate or undertake electronic surveillance on American citizens, it's illegal. They don't need to do this to spy on al-Qaeda outside the country. It's not necessary. . . . The president could have asked for changes in FISA. They've amended it five times. . . . The important thing is to get the constitutional issues right. These are crimes against the constitutional architecture."
Fein doesn't expect Congress to set things right. "Congress is too philosophically ignorant to know how much of their power is being usurped," he says. He also sees the current congressional majority as accommodating the president because they belong to the same party. "They don't think about the future. The destiny of the nation is too long-term for them." After spending almost half of the last century in the minority, the Republican majorities in both houses of Congress reached a tacit agreement with the executive branch: Congress surrendered much of its constitutional authority to the president in exchange for partisan political dominance. It's particularly unfortunate that they did so on the eve of a terrorist attack that has made fear a political campaign tool.
Waiving away the waiter, Fein continues to describe the larger and more lasting structural damage done by the vice president—damage to the Constitution and the system of government it has defined for two hundred and thirty years. In the decade that followed Watergate, the Congress reasserted the authority vested in it by the Framers and redefined constitutional limits for an executive branch that refused to recognize them. It did so in response to a very evident constitutional crisis. What the vice president refers to as "the post-9/11 world" has delivered the country into another, although still largely invisible, constitutional crisis—in this case, an executive branch that has very low regard for the Bill of Rights, or for the Congress.
Whether the Democrats can take control of Congress, and, should they do so, whether they would somehow find the vision and political courage to confront the current constitutional crisis, are questions that, unfortunately, address our last best hope. The account of Ben Franklin emerging from the Pennsylvania State House after the ratification of the Constitution has been told so many times it is now a part of our received historical wisdom. As the story has it, a woman in the crowd gathered on the Philadelphia street shouted out to Franklin: "What sort of government have you given us?"
Franklin's reply was brief:
"A republic, if you can keep it."
The intersection of Dick Cheney, a supine Republican Congress, and four commercial jetliners transformed into terrorist weapons give Ben Franklin's response a currency it has not had since the Civil War.
25
"Dick Cheney exercises all the powers of the presidency," Fein says. "He has great contempt for Congress. You can get pretty cynical about Congress. Some of these people are yahoos. But that's not the point. You don't have to be brilliant to provide the checks and balances. You just need the constant questioning, the restraint."
Fein dismisses Cheney's argument that Congress overreached when it requested the names of participants in his energy task force meetings. "Bogus" and "Specious," he says. He's equally dismissive of the administration's defense of its warrantless wiretapping. "This is a crime," Fein states flatly. "FISA says if you operate or undertake electronic surveillance on American citizens, it's illegal. They don't need to do this to spy on al-Qaeda outside the country. It's not necessary. . . . The president could have asked for changes in FISA. They've amended it five times. . . . The important thing is to get the constitutional issues right. These are crimes against the constitutional architecture."
Fein doesn't expect Congress to set things right. "Congress is too philosophically ignorant to know how much of their power is being usurped," he says. He also sees the current congressional majority as accommodating the president because they belong to the same party. "They don't think about the future. The destiny of the nation is too long-term for them." After spending almost half of the last century in the minority, the Republican majorities in both houses of Congress reached a tacit agreement with the executive branch: Congress surrendered much of its constitutional authority to the president in exchange for partisan political dominance. It's particularly unfortunate that they did so on the eve of a terrorist attack that has made fear a political campaign tool.
Waiving away the waiter, Fein continues to describe the larger and more lasting structural damage done by the vice president—damage to the Constitution and the system of government it has defined for two hundred and thirty years. In the decade that followed Watergate, the Congress reasserted the authority vested in it by the Framers and redefined constitutional limits for an executive branch that refused to recognize them. It did so in response to a very evident constitutional crisis. What the vice president refers to as "the post-9/11 world" has delivered the country into another, although still largely invisible, constitutional crisis—in this case, an executive branch that has very low regard for the Bill of Rights, or for the Congress.
Whether the Democrats can take control of Congress, and, should they do so, whether they would somehow find the vision and political courage to confront the current constitutional crisis, are questions that, unfortunately, address our last best hope. The account of Ben Franklin emerging from the Pennsylvania State House after the ratification of the Constitution has been told so many times it is now a part of our received historical wisdom. As the story has it, a woman in the crowd gathered on the Philadelphia street shouted out to Franklin: "What sort of government have you given us?"
Franklin's reply was brief:
"A republic, if you can keep it."
The intersection of Dick Cheney, a supine Republican Congress, and four commercial jetliners transformed into terrorist weapons give Ben Franklin's response a currency it has not had since the Civil War.
25
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