The Right Seeks to Rein In Presidential Power

Leading voices in the conservative movement are demanding that the Democrat-controlled Congress restore checks and balances within the government and rein in the power of President George W. Bush.

But their point of view is consistently being drowned out by the "Ann Coulter wing" of the Republican Party, fed by the "ignorance of members of Congress about the principles of a constitutional democracy."

This is the view expressed by Bruce Fein in an exclusive Truthout interview. Fein served as associate deputy attorney general under President Ronald Reagan and is a founder of a conservative movement known as the Liberty Coalition. The Coalition has launched a new initiative, known as the American Freedom Agenda. The AFA's ten-point action program calls on Congress to:

• End the use of military commissions to prosecute crimes.


• Prohibit the use of secret evidence or evidence obtained by torture.


• Prohibit the detention of American citizens as enemy combatants without proof.


• Restore habeas corpus for alleged alien combatants.


• End National Security Agency warrantless wiretapping.


• Challenge presidential signing statements.


• Bar executive use of the state-secret privilege to deny justice.


• Prohibit the president from collaborating with foreign governments to kidnap, detain or torture persons abroad.


• Amend the Espionage Act to permit journalists to report on classified national security matters without threat of persecution.


• Prohibit of the labeling of groups or individuals in the US as global terrorists based on secret evidence.

The AFA plans to draft legislation to achieve these goals and to lobby Congress to put the proposed measures on the House and Senate calendars.

The Coalition has also rebuffed the recent testimony of Federal Bureau of Investigation (FBI) Director Robert Mueller regarding the illegal use of National Security Letters (NSLs). Appearing before the Senate Judiciary Committee, Mueller acknowledged that FBI personnel had violated laws and regulations and that the bureau had failed to create effective internal oversight controls.

Truthout asked about the enthusiastic applause that followed the intemperate remarks of right-wing author Ann Coulter at the recent annual meeting of CPAC, the Conservative Political Action Conference, in Washington, DC. Coulter implied that Democratic presidential hopeful John Edwards was a homosexual.

Fein told Truthout, "Imbeciles like Ann Coulter play to the basest instincts of the conservative movement to give the president a blank check to grab whatever power he wishes."

He said the CPAC audience was composed largely of younger conservatives. Without excusing her rhetoric, Fein said that Coulter was "simply giving them a pep talk."

He expressed disappointment with the lack of any real pushback against presidential power by Congressional Democrats. "The Democrats in Congress have done absolutely nothing to tell the president he is not a king and we do not live in a monarchy. They are allowing him to trash the Constitution because most of them know nothing about the Constitution and are concerned only with making headlines about minor issues and getting themselves reelected."

Fein acknowledged that things were probably worse when Congress was under Republican control, "but only marginally."

"Neither party has shown the courage to assert the power of Congress as a coequal branch of government. Congress should be telling the president it's not OK to detain people without trials, to grab people off the streets and 'render' them to other countries to be tortured, to listen in to our telephone conversations, and to issue signing statements that nullify laws he doesn't like."

He added, "We elect members of Congress to lead, not to follow. If they are going to lead, they need to understand the Constitution and the vision of its framers, and then have the backbone to insist that the executive branch stop usurping the responsibilities assigned to the legislative and judicial branches of our government."

Fein's associates in the coalition include some of the best-known and most-respected names in the American conservative movement. They include former Georgia Congressman Bob Barr, political marketing guru Richard Viguery and David Keene, who has since 1984 been chairman of the American Conservative Union, the nation's oldest and largest grassroots conservative lobbying organization.

Some, most notably Bob Barr, led a conservative drive last year to repeal sections of the USA Patriot Act and revise others in order to preserve civil liberties.

The Liberty Coalition includes such organizations as the American Civil Liberties Union, American Families United, Americans for Tax Reform, Amnesty International, the Arab American Institute, Association of American Physicians and Surgeons, the Bill of Rights Defense Committee, Common Cause, Concerned Foreign Service Officers, the Drug Policy Alliance, the Electronic Frontier Foundation, the Government Accountability Project, MoveOn.org, the National Security Whistleblowers Coalition, People for the American Way, the Veterans Affairs Whistleblowers Coalition and many others.

AFA plans to call on White House hopefuls to sign a presidential pledge committing themselves to implement the AFA's ten-point plan if elected. Thus far, Congressman Ron Paul (R-Texas), presidential candidate of the Libertarian Party, is the only candidate to sign the pledge.

Fein told Truthout he doubted Sen. Hillary Clinton would sign the pledge. "Like her husband, former President Bill Clinton, Senator Clinton believes in a strong executive branch of government," Fein said.

He noted that he and his colleagues are criticized by conservatives almost as much as by liberals. "Too many people who call themselves conservatives have lost their way. Those who support George W. Bush's interpretation of executive power are not Democrats, they are monarchists. And liberals don't seem to understand that people with views like ours can be conservatives," he said.

"We have many policy disagreements with liberals and progressives, as well as within the conservative movement. But we should have no disagreement about what the Founding Fathers had in mind when they wrote the Constitution and the Bill of Rights." He added, "We welcome the participation and support of liberals and progressives who share that vision."

Asked by Truthout about the current debate over so-called "activist judges," Fein said that judicial independence was an underlying tenet of a functioning democracy. However, he added, "The solutions to most of our current problems lie not with the courts, but with Congress. It is the responsibility of Congress to address the basic questions of executive authority and separation of powers."

"Most people in Congress know nothing about the Constitution, have never read a Federalist Paper, and are mostly concerned with currying favor with the White House and getting reelected," he charged.

But the American voters who send representatives to Washington also bear a significant share of the responsibility for electing followers rather than leaders. "We get the government we deserve," he said. "Our educational system has failed to teach our young people about our principles and what we stand for as a nation. Those young people grow up and vote and some of them run for public office and get elected, and they still know nothing about the principles on which government is supposed to be based."

On the FBI National Security Letters controversy, Liberty Coalition's national director, Michael Ostrolenk, said, "The FBI has clearly abused its power and violated the constitutional rights of tens of thousands of Americans. These actions must not be tolerated in a free society. While enhanced public scrutiny and Congressional oversight are a good first step, they are not enough to protect our nation's liberty from abusive, unchecked power. Congress must act to stop the issuance of National Security Letters!"

National Security Letters are a controversial part of the USA Patriot Act. Civil liberties advocates have long argued that these secret, coercive demands for privacy records violate fundamental privacy rights. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus, insurance companies and other businesses to produce highly personal records about their customers - without any evidence the person whose records are demanded has done anything wrong and without any judicial or independent check to protect individual rights. NSL recipients are placed under a gag order and have no recourse to object to the FBI demands under sharp penalty of law.

A recent audit by the Inspector General of the Department of Justice found that FBI agents demanded individuals' personal data without proper authorization and improperly obtained telephone records under the guise of "emergency" in nonemergency circumstances.

The IG's report also found that the FBI significantly underreported to Congress for three years how it forced businesses to turn over customer data. The Justice Department also misled the American people and Congress about the explosion in the use of these intrusive demands, at one point denying investigative reporting that over 30,000 requests had been made in a single year. This report documented that, in fact, over 50,000 had been made in a year, for a total of almost 150,000 in a three-year period.

In his testimony, Director Mueller suggested a potential openness to using administrative subpoenas in place of NSLs. Administrative subpoenas are similar to NSLs, but have a very limited element of judicial oversight after records have been obtained. Civil liberties advocates argue that the demands are also unconstitutional and are not an acceptable compromise.

"The choice between National Security Letters and administrative subpoenas is a false choice," Ostrolenk said. "The Fourth Amendment demands a full and vigorous review of executive power by the judiciary. Both National Security Letters and Administrative Subpoenas are unconstitutional."

But Bruce Fein acknowledged that, with a timid and tiny Democratic majority in the House and Senate, and Republicans fearful of alienating even a greatly weakened lame-duck president, his group faces a daunting uphill battle to see its agenda enacted into law.

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.

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