- The Washington Times - Monday, May 7, 2007

Who among the Republican or Democratic aspirants for the presidency in 2008 would have signed the Declaration of Independence pivoting on a multicount indictment of King George III? The alarming answer is very few.

The overwhelming majority apparently covet more a coronation than an Inauguration. They crave presidential powers reminiscent of the British king that President George W. Bush has brandished to cripple the Constitution’s checks and balances and protections against government abuses.

As part of the American Freedom Agenda established on March 20, 2007 by myself, Richard Viguerie, David Keene and Bob Barr, the presidential candidates were urged by letter to sign the American Freedom Pledge. A signatory would promise to restore checks and balances and the conservative philosophy of the Founding Fathers by doing the following, among other things, if elected:

* Refuse to play judge, jury and prosecutor in the trial of war crimes through military commissions or otherwise.

* Renounce authority to detain American citizens as enemy combatants indefinitely based on secret evidence or evidence extracted from torture.

* Confine enemy combatants subject to lifetime detention without trial to noncitizens engaged in active hostilities against the United States;

* Restore the Great Writ of habeas corpus — the cornerstone of the rule of law — to permit detainees held on the president’s say-so alone a hearing before an independent judge to determine the legality of their detentions.

* Terminate interceptions by the National Security Agency (NSA) of the e-mails and phone conversations of American citizens on U.S. soil on the president’s say-so alone. The prevailing NSA spying flouts the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended six times since September 11, 2001, to accommodate the heightened danger and new communications technologies. Foreign intelligence collection would continue with judicial vetting under FISA, which the Justice Department applauded as nimble, flexible and impeccable on July 31, 2002, before the Senate Intelligence Committee.

* Renounce use of signing statements whereby the president signs a bill passed by Congress into law but declares his intent to disregard provisions he maintains are unconstitutional. The practice is tantamount to an absolute line-item veto that the U.S. Supreme Court declared usurped legislative authority in Clinton v. New York.

* Renounce the assertion of executive privilege to prevent Congress from detecting and deterring fraud, waste, abuse or lawlessness in the executive branch in recognition that sunshine is the best disinfectant and that secret government is inimical to government by the consent of the governed.

* Desist from employing the state secrets privilege to deny compensation to victims of constitutional wrongdoing perpetrated by government officials or agents, for example, kidnappings or torture.

* Prohibit prosecution of journalists under the Espionage Act for publishing national security abuses typically leaked by the executive branch.

* Proscribe “extraordinary rendition,” i.e., the practice outside the law of kidnapping, dispatching to secret dungeons, and torturing persons abroad whom the president alleges are criminals or terrorists.

The American Freedom Pledge addresses grievances that find close analogies to the Declaration’s indictment of the British monarchy. The Declaration assails the king for maneuvers that frustrated enactment of laws necessary for the public good. Presidential signing statements amount to a comparable evil. They nullify laws thought by Congress to advance the public interest, for example, prohibiting torture or preventing the executive from opening mail without a judicial warrant.

The Declaration denounces the king’s subordination of civil to military authority. The employment of military commissions, suspension of the Great Writ of habeas corpus and the indefinite detentions of enemy combatants on the commander in chief’s say-so alone similarly subordinate civil to military law.

The Declaration deplores the king’s denial of trial by jury, which corresponds to the use of military commissions or combatant status review tribunals to adjudicate the fate of alleged war criminals or enemy combatants. The Declaration decries the king’s shielding British soldiers accused of murder from legal accountability. The Military Commissions Act of 2006 similarly grants immunity to military or civilian personnel guilty of violating the War Crimes Act of 1997.

The Declaration rebukes the king’s obstruction of justice by refusing to establish “Judiciary Powers.” Extraordinary rendition, suspending the Great Writ of habeas corpus, and detaining alleged enemy combatants outside the United States are analogous circumventions of the judicial power.

The Declaration decries the king’s “altering fundamentally the Forms of our Governments.” Presidential signing statements, executive privilege to foster secret and unaccountable government, and open-ended spying on U.S. citizens in contravention of FISA have fundamentally altered the Constitution in favor of an imperial presidency.

Accordingly, to desist from signing the American Freedom Pledge is to suggest complacency with the tyranny of King George III. Yet the only presidential candidate, at present, who has signed is Ron Paul, Texas Republican. Mitt Romney, former Republican governor of Massachusetts, has balked. The remainder has been nonresponsive, a silence indicating their suspicion that the Declaration unjustifiably condemned executive supremacy.

In sum, to vote for a nonsignatory is to risk turning the nation’s political clock back by more than two centuries.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization dedicated to restoring the Constitution’s checks and balances and protections against government abuses. He has agreed to serve as an attorney for Ron Paul’s presidential campaign.



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