COMMENTARY: No profile in courage

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By Bruce Fein

Sen. Barack Obama promises change. But his promises are discredited by his flawed views on impeachment or prosecution of Bush administration officials for criminal wrongdoing. An Obama presidency would mean more of the same trajectory towards executive supremacy.

During the primary season last April, the inevitable Democratic nominee for the White House was asked whether his Justice Department would aggressively investigate and pursue suspected crimes of torture, kidnappings and imprisonments abroad, or illegal warrantless surveillances of American citizens committed under the aegis of President George W. Bush. Mr. Obama replied that he would proceed with caution to avoid provoking Republicans or fueling divisiveness. After all, Mr. Obama hinted, the Constitution should not confound political harmony or the fortunes of the Democratic Party. He amplified as follows:

"What I would want to do is to have my Justice Department and my attorney general immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. ... You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems to solve.

"So this is an area where I would want to exercise judgment - I would want to find out directly from my attorney general ... are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important - one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge [aforethought], then I think a basic principle of our Constitution is nobody is above the law."

Mr. Obama's tacit conclusion that President Bush's vandalizing of the Constitution has created no "exceptional circumstances" justifying impeachment for high crimes and misdemeanors betrays a stunning complacency with executive usurpations and abuses. President Bush has invoked executive privilege to block current or former White House officials from appearing to testify before Congress about crime or maladministration - a power that would cripple congressional oversight and prevent the people from knowing what their government is doing and why and to adjust their political loyalties and energies accordingly. The latter is the core of self-government.

Mr. Bush has flouted the criminal provisions of the Foreign Intelligence Surveillance Act of 1978, as amended on numerous occasions since Sept. 11, 2001. For more than five years, he directed the National Security Agency to spy on American citizens on American soil on his say-so alone, and ignored a law that his own Justice Department had described as nimble and adept in nipping terrorist plots in the bud. He has claimed power to disobey any law that would restrict his ability to gather foreign intelligence, for example, prohibitions on torture, mail openings, kidnappings or burglary. President Bush has detained American citizens indefinitely as unlawful enemy combatants without accusation, trial or access to a lawyer; and, defined the prohibited enemy status broadly to cast suspicion on any who would oppose the president's national security policies in Iraq, Iran or elsewhere.

He has issued countless presidential signing statements declaring his intent to disregard provisions of bills he has signed into law because he decrees them to be constitutionally dubious. He has sponsored or acquiesced in waterboarding, which has been punished as torture by the United States for more than a century; and, the destruction of interrogation videotapes by the CIA, which probably contained ocular proof of torture or sister illegal conduct.

He has insisted that every square inch of the planet is a battlefield where military force and military law can be employed, including all of the United States. He has promulgated a theory of a unitary executive indistinguishable from monarchy. All of President Bush's alarming precedents of executive supremacy will lie around like loaded weapons ready for use by any successor in the White House unless rebuked through impeachment. If the Bush-Cheney duumvirate falls short of exceptional circumstances justifying impeachment, then that cornerstone check against executive abuses has been reduced to sound and fury signifying nothing.

Mr. Obama's agnosticism over whether Bush administration officials may have committed crimes is equally misconceived. He worries that really dumb policies may be mistaken for crimes, but can point to no instance in the last century or more of federal criminal law enforcement where that possible error surfaced. He errantly insists that the public record is inconclusive on whether Bush officials may have committed crimes. Uncontroverted evidence shows they violated FISA for years, waterboarded detainees, and kidnapped and imprisoned suspected terrorists abroad on the president's say-so alone.

Mr. Obama is equivocating and tergiversating because he doesn't have the stomach for an unwavering adherence to the rule of law and equal justice. Does he prefer peace with the Republican Party to shield his own administration from examination by a successor?

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