- The Washington Times - Tuesday, September 18, 2007

ANALYSIS/OPINION:

The Founding Fathers believed congressional tyranny was more to be feared than executive usurpations and abuses. The opposite has proven true. Power has migrated to the president as the United States has climbed to superpower status and national security affairs have come to dominate the political agenda.

And Congress has lost institutional pride, resolve and cohesiveness in clashes with the White House over legislation and oversight. Loyalty to party trumps loyalty to constitutional checks and balances. And members of Congress are too unschooled or uncaring to resist their descent into semi-irrelevancy or vassalage to the president.

Congressional oversight has been frustrated by extravagant claims of executive privilege to prevent current or former executive officials from testifying, for example, Karl Rove, Harriet Miers and Joshua Bolten. Information is power. And without information as to what the executive branch is doing, Congress is powerless to deter wrongdoing or lawlessness by exposure or to know what new laws are appropriate.

President Bush, for example, frightened Congress into enacting the Protect America Act in early August by claiming secret information about international terrorism proved congressional inaction would cause American deaths. Congress had no independent way to verify Mr. Bush’s assertion and succumbed to his fear-mongering.

The congressional power to legislate has been compromised by signing statements that declare the president’s intent to disregard provisions of bills he has signed into law because he maintains they are unconstitutional. Signing statements are tantamount to absolute line-item vetoes, which the U.S. Supreme Court held unconstitutional in Clinton v. New York. They result in enforcement of laws Congress did not pass. Members vote for an entire bill, not an expurgated edition published by the president.

In national security affairs, the president has claimed authority to ignore any statute that limits his authority to gather foreign intelligence, for instance, laws prohibiting electronic surveillance, breaking and entering homes, opening mail or torture of American citizens without judicial warrants.

For more than five years after September 11, 2001, President Bush targeted American citizens on American soil for electronic surveillance on his say-so alone in contravention of the criminal provision of the Foreign Intelligence Surveillance Act of 1978 (FISA). Congress has played spectator to the violation of its own laws.

Several initiatives would restore congressional oversight and lawmaking. As to executive privilege and secrecy, the Senate should insist as a condition of confirmation that every presidential nominee under oath agree to transparency with Congress.

President Bush’s nominee for attorney general, for example, should not be confirmed unless he agrees to waive executive privilege regarding the firing of United States attorneys and the National Security Agency’s warrantless domestic surveillance program. Congress should reinforce these executive promises with legislation that prohibits the expenditure of funds to pay the salary of any executive branch officials who invokes executive privilege to refuse to testify or answer legitimate questions before a congressional committee.

Over recent decades, the executive office of the president has gained power at the expense of Cabinet departments. The president’s inner circle escapes Senate confirmation despite being endowed with powers more important than Cabinet officers. The president alone appoints his national security adviser, White House counsel and chief political strategists. Congress should exercise the power of the purse to condition payment of the salaries of the president’s White House staff on their agreements to testify to Congress under oath when needed for oversight or legislation.

Congress should also enact a law making executive privilege subordinate to these twin congressional missions. The Supreme Court explained in United States v. Nixon that the privilege to keep presidential communications secret rests on the assumption that presidential advisers would remain silent or skew their advice without an expectation of confidentiality. Congress should hold hearings to discredit that assumption.

Witnesses should include current and past Cabinet members and White House officials. They should be asked under oath whether their communications with the president were with the expectation that what they said would never leak to the media, to Congress or to people or places outside the Oval Office.

Congress should counter presidential signing statements by refusing to send bills to the White House for the president’s signature without an advance commitment that he will enforce them in their entirety. The president could renege on his commitment. But he would pay a stiff political price for prevaricating.

The power of the purse is the answer to revitalizing the role of Congress in national security. It should enact a law declaring no monies of the United States may be used to gather foreign intelligence or to interrogate detainees in contravention of statutes enacted by Congress, for instance, FISA or the Detainee Treatment Act.

The Office of Legal Counsel in the Justice Department (OLC) fashions theories of executive power to marginalize Congress and the judiciary. The OLC traditionally has sported exceptionally gifted lawyers. The late Chief Justice William H. Rehnquist and current Associate Justice Antonin Scalia served as assistant attorneys general of OLC.

Congress should create its own OLC tasked to develop and advocate theories of legislative power in butting heads with the president and the courts. At present, Congress regularly loses separation of powers cases in the Supreme Court because its advocates are amateurish compared with executive branch.

Congress has constitutional tools to remedy Mr. Bush’s crippling of checks and balances. The question is whether it has the will to use the tools.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.

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