- The Washington Times - Monday, January 15, 2007

French King Louis XVI had his fawning ministers, the Soviet Union had its puppet Politiburo, but the U.S. House Republican Steering Committee for the 110th Congress has learned nothing from those examples.

Last week, the committee excluded Rep. Jeff Flake, Arizona Republican, from the House Judiciary Committee. He was punished for defending the Constitution against executive branch transgressions. For example, Mr. Flake had questioned the National Security Agency’s warrantless domestic surveillance program that targets U.S. citizens on American soil in contravention of the Foreign Intelligence Surveillance Act (FISA), as amended six times since September 11, 2001, to address the heightened terrorist danger and new communications technology. A federal district court has held the program illegal.

Mr. Flake provoked further fury in the Steering Committee by supporting President George W. Bush’s immigration proposal. A majority of House Republicans favored more draconian measures to deport millions of assimilated illegal aliens. Generally speaking, however, Mr. Flake had been loyal to the House Republican agenda. Despite some reservations, he voted to support reauthorization of the Patriot Act both in the Judiciary Committee and on the House floor.

The Steering Committee’s crucifixion of Mr. Flake for challenging a few verses of its gospel might have been understandable if Republicans had won smashing victories in the House last November. But the American people restored Democratic control by a commanding majority after a 12-year hiatus, a decisive repudiation of the House Republican agenda and an endorsement of Mr. Flake’s dissents. The committee should have opened its ears to his ideas as a potential road to salvation. Instead, it retaliated in the spirit of Cleopatra’s assault on the messenger for bringing unwanted news or Galileo’s banishment for disputing the geocentric theory of the universe.

Republicans captured the House in 1994 by welcoming fresh ideas that gave birth to Speaker Newt Gingrich’s Contract With America. They lost their majority in 2006 from intellectual sterility and timidity. The House Steering Committee’s rebuke of Mr. Flake demonstrates that, like the French Bourbons, it has learned nothing and forgotten nothing. A political organization that suppresses challenges to conventional wisdom is in decay.

Notwithstanding the Steering Committee, Mr. Flake’s political courage deserves a salute. The Constitution is out of joint. The White House is seizing or claiming unprecedented powers to spy on Americans through programs unknown to Congress; to brand and to punish individuals as global terrorists, enemy combatants, or war criminals without a semblance of due process; and to disregard congressional restraints on the president’s war powers, for example, limiting his authority to invade Iran, Syria, or North Korea. Congress has fiddled while checks and balances have crumbled. House Republicans have acted more as White House echoes than as independent and skeptical voices.

Mr. Flake has been a rare but laudable exception. Peer pressure among House Republicans to support President Bush over post-September 11 usurpations by exploiting public fear is intense. In refusing to succumb, Mr. Flake has undertaken the formidable task of defending the Constitution’s decisionmaking processes and the separation of powers.

Citizens are naturally inclined to rally behind results, not processes. To awaken support for proposals that professedly would strengthen the nation’s arsenal against terrorism is thus relatively easy. Everyone desires the defeat of terrorism. Thus, the vast majority are predisposed to endow the president with any power that will purportedly be employed to that end, including the use of secret or coerced evidence to convict or to detain indefinitely or spying programs unchecked by any other branch of government.

It is extraordinarily difficult to convince the electorate that the history of liberty is the history of procedural protections; that their absence invariably yields injustices; and, that enlightened government flourishes when fundamental premises or truths are ceaselessly scrutinized and debated.

Mr. Flake takes seriously his oath to defend the Constitution and the institution of Congress as a barrier to executive omnipotence. Whether he succeeds or not is problematic. And even his success might not be honored in the history books. Does anyone remember the name of the brave Republican senator whose vote to acquit President Andrew Johnson of impeachable offenses thwarted a legislative despotism threatened by his Republican colleagues in the Radical Reconstruction Congress?

Mr. Flake promises to persevere. He is setting a standard to which the wise and honest member of Congress may repair. The public should applaud.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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