BANDOW: Restore the Constitution, Mr. President-elect

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By Doug Bandow

COMMENTARY:

President-Elect Barack Obama has a lengthy agenda when he takes office in January. One of his most important priorities should be to restore the Constitution.

"In Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy," Bruce Fein, a former Reagan administration appointee, warns that constitutional governance in America is at stake. The problem is not a threatened attack from without, but the erosion of safeguards for liberty from within.

He reminds us that "Eternal vigilance is the minimum price of liberty."President Bush will soon be gone, but the extraordinary powers claimed by his administration will remain.

For instance, the president contended that the Authorization for Use of Military Force (AUMF), approved by Congress in the aftermath of the terrorist attacks of Sept. 11, 2001, also gave him essentially any power short of going to war, such as warrantless surveillance of U.S. citizens and designation of American citizens as enemy combatants.

If the president's argument is correct, what power does he not possess, asks Mr. Fein. "This means that, among other things, the AUMF empowers President Bush to use the American military to kill any individuals in the United States whom he declares were complicit in the terrorist acts committed on Sept. 11, 2001 - on his say-so alone."

The implications are terrible. Notes Mr. Fein, "if the president suspects that a dozen 'high value' al Qaeda adherents are living in a suburban Los Angeles home, the AUMF authorizes him to order an aerial bombardment of the residence to kill its occupants. If the president's suspicions are later proved wrong," the killings would still have been lawful. This is America?

Thankfully, President Bush has not leveled suburban neighborhoods across America, but he apparently believed he had the power to do so.

Moreover, according to this administration, explains Mr. Fein, "If a power can be classified as 'executive,' then neither the legislative nor judicial branch may regulate, oversee, or check the president's actions." This argument contradicts the clear intentions of America's Founders, who drafted the Constitution to disperse and constrain power. How, asks Mr. Fein, "is President Bush's unitary executive theory different from self-coronation?"

Even the war power, so closely associated with the president, is divided. Congress is to decide whether there is a war for the president to manage. Congress establishes the military, approves the rules of war and provides the necessary funding.

Yet despite executive abuses so obvious and pervasive, Congress, under both Democratic and Republican control, has done little to restrain the president. Even worse, the American people seem disinterested in protecting their liberties.

One problem area is government secrecy, so important for the executive branch to hide illegal behavior. Mr. Fein notes that the administration has used secrecy "to frustrate congressional or private oversight of executive-branch actions," even those that "are flagrantly criminal."

He also discusses "extraordinary rendition," by which the United States turns people over to allied states to be tortured, as well as military commissions, which have won few convictions despite being designed to ensure prosecution victories. The government is to defend America from people who mean the country ill, but to do so in ways consistent with American law and principles, and that are effective.

Mr. Fein's judgment of the Bush administration is harsh: "President Bush has kidnapped, imprisoned, and tortured suspected terrorists abroad. He has created a climate of lawlessness in the executive branch, which emboldened CIA officials to destroy interrogation videotapes sought by the Sept. 11 Commission or Congress that probably provided ocular evidence of torture. He has signed bills passed by Congress while announcing his intent to disregard provisions that he maintains are unconstitutional - for example, a provision denying funds to establish permanent military bases in Iraq. He has asserted the power to break and enter homes, open mail, kidnap and torture to gather foreign intelligence without review by any other branch. He has tacitly declared that every square inch of the United States is a battlefield appropriate for military force and military law."

The danger to our republic comes from "men of zeal," politicians, activists and bureaucrats who insist their powers must be enhanced and our freedoms sacrificed to protect us from dangers that only they recognize and understand. It is the same Siren call heard throughout history that has led to the destruction of so many liberal societies.

Ultimately, the American people can't rely on anyone but themselves to preserve their liberty. Writes Mr. Fein: "Everyone in a democracy is thus burdened with a moral duty to act as a sentinel for the liberty of everyone else." If not us, who? If not now, when?

The new administration provides an opportunity for a fresh start. Mr. Fein presents an emergency manifesto that should be heeded by all patriots and lovers of liberty.

Doug Bandow is the Robert A. Taft Fellow at the American Conservative Defense Alliance and author of "Leviathan Unchained:Washington's Bipartisan Big Government Consensus" (forthcoming, Xulon Press).