Bush-Cheney deserve censure for declaring war against the Constitution

By Bruce Fein, Ralph Nader, San Francisco Chronicle

Before Inauguration Day, the 111th Congress should pass a forward-looking resolution censuring President Bush and Vice President Dick Cheney for executive aggrandizements or abuses that have reduced Congress to vassalage and shredded the rule of law. The resolution should express a congressional intent to prevent repetitions by the President-elect Barack Obama or his successors. The objective is not Bush-Cheney bashing, but to restore a republican form of government in which "We the People" are sovereign, and the president is checked and publicly scrutinized by Congress and the courts. The Bush-Cheney duumvirate won an undeclared war against the Constitution. Most troublesome, they captured the power to initiate war from a spineless Congress. The Founding Fathers were unanimous in denying the president that constitutional authority. They knew that presidents would chronically deceive Congress and concoct excuses for war to control public information, benefit political friends through government contracts, quell dissent, assert emergency powers and enjoy the intoxicating thrill of, "I came, I saw, I conquered."

By wielding the threat of international terrorism, the Bush-Cheney team put
the nation on a permanent war footing - the first time in history that war
has been undertaken against a tactic. They maintained that the entire
post-9/11 world is an active battlefield where United States military force
may be used to kill suspected members of al Qaeda irrespective of
international boundaries.

They claimed executive privilege and state secrets to conduct secret
government - thereby circumventing political and legal accountability.
This included directives to former White House officials Karl Rove and
Harriet Miers to flout congressional subpoenas for testimony. They detained
hundreds of people (including American citizens) as enemy combatants without
accusation or trial. They authorized torture (waterboarding and
extraordinary rendition), abductions, secret prisons and illegal
surveillance of American citizens.

Like its immediate predecessors, the 110th Congress eagerly yielded its
authorities - even the power of the purse - to the president. The Iraqi War
Resolution, the $700 billion Troubled Asset Relief Act, the Foreign
Intelligence Surveillance Act amendments, and the declination to hold Rove
in contempt of Congress were emblematic.

If left unrebuked, the Bush-Cheney usurpations of power will become part of
the constitutional firmament and risk creating a safe harbor for future
presidential abuses. Every member of Congress, moreover, is required to take
an oath to "support (the) Constitution" pursuant to Article VI. There is no
corresponding oath to support the Republican or Democratic parties or to
subordinate the Constitution in the name of political harmony. Censure would
be no novelty.

The Senate voted to rebuke President Andrew Jackson for constitutional
lawlessness in 1834: "Resolved, That the President, in the late executive
proceedings in relation to the public revenue, has assumed upon himself
authority and power not conferred by the Constitution and laws, but in
derogation of both."

The censure resolution we contemplate would enumerate the serial Bush-Cheney
constitutional violations; and, censure them for complicity in wrecking the
Constitution's finely tuned balance of powers. In two previous congressional
sessions, Sen. Russ Feingold, D-Wis., introduced censure resolutions against
the president and vice president for deceiving Congress about the war in
Iraq and warrantless spying on American citizens in contravention of FISA.

The resolution should also endorse a remedial legislative agenda that would
be binding on all future presidents, including the president-elect. It
should include a criminal prohibition on intentional misrepresentations to
Congress to obtain authorization for war; or, the president's initiation of
war without an express congressional mandate.
The president's withholding of information demanded by Congress should
likewise be prohibited.

An independent prosecutor should be created to prosecute crimes allegedly
perpetrated by high-level executive-branch officials in the course of
executing presidential directives or defending presidential prerogatives.
FISA should be amended to restore individualized warrants based on probable
cause to spy on Americans in order to gather foreign intelligence.

Censure will not, by itself, remedy the Bush-Cheney vandalizing of the
Constitution. But if members of Congress neglect even that modest step, our
republic and democracy will have been irreparably harmed.

Bruce Fein, a deputy attorney general in the Reagan administration, is
chairman of the American Freedom Agenda and author of "Constitutional
Peril: The Life and Death Struggle for our Constitution and Democracy"
(Palgrave Macmillan, 2008). Ralph Nader is a citizen advocate and author.

This article appeared on page B - 5 of the San Francisco Chronicle