Sen. John McCain saluted the Constitution’s checks and balances and repudiated multiple Bush-Cheney usurpations on May 15 in Columbus, Ohio. But whether the salute will prove more than a restricted railroad ticket good for this day and train only remains uncertain. McCain, nevertheless, deserves applause for spotlighting the greatest threat confronting the country: executive despotism facilitated by secret government.
The de facto Republican presidential candidate declared: “The powers of the presidency are rightly checked by the other branches of government, and I will not attempt to acquire powers our founders saw fit to grant Congress.” The Founders clearly saw fit to grant Congress the exclusive power to authorize the initiation of warfare. On August 17, 1787, at the Constitutional Convention, James Madison proposed to change a congressional power to “wage” to “declare” war to afford “the executive power to repel sudden attacks.”
Roger Sherman of Connecticut concurred, and explained that the “executive should be able to repel and not commence war.” James Wilson, a convention delegate and later associate justice of the Supreme Court, praised the Constitution to the Pennsylvania ratification convention because, “It will not be in the power of a single man, or a single body of men, to involve us in [war].”
Former military hero and President Eisenhower promised that “I will never be guilty of any kind of action that can be interpreted as war until the Congress, which has the constitutional authority, says so.”
Mr. McCain should be asked whether he would refrain from initiating warfare against Iran, North Korea, Syria or others without express authorization by Congress because the Founders granted that power to Congress.
President Bush claims authority to target American citizens on American soil for warrantless electronic surveillance by the National Security Agency on his say so alone in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA).
The Founders saw fit to entrust Congress with the power to regulate the collection of foreign intelligence in the Constitution’s Necessary and Proper Clause. They feared unchecked power would be abused. Mr. McCain should be asked whether he will gather foreign intelligence in strict conformity with FISA.
President Bush has claimed power to detain indefinitely without accusation or trial American citizens he believes to be unlawful enemy combatants. Mr. McCain should be asked whether he would release and refuse to detain American citizens under that rubric.
Mr. McCain renounced presidential signing statements in his Columbus presentation: “I will exercise the veto if I believe legislation passed by Congress is not in the nation’s best interests, but I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like.”
The Arizona Republican’s renunciation was well-conceived. Signing statements are indistinguishable from line-item vetoes that the Supreme Court held invalid in Clinton v. New York. The statements declare the president’s intent to reduce to ink blots portions of bills he maintains are unconstitutional. They circumvent the right of Congress to package both agreeable and disagreeable provisions in a single bill to confront the president with the difficult political choice of accepting all or none. Mr. McCain should be asked whether he will revoke the hundreds of signing statements issued by President Bush and breathe life into provisions Mr. Bush dispatched into rigor mortis.
Sen. McCain boasted: “My administration will set a new standard for transparency and accountability.” He should be asked whether he would prosecute for contempt executive branch officials who refuse to appear before Congress for testimony or decline to answer relevant questions. He should be asked whether he would refuse to defend former White House Counsel Harriet Miers or White House chief of staff Joshua Bolten in an outstanding lawsuit demanding their testimonies about the firing of nine United States attorneys.
He should be asked whether he would defend David Addington, Vice President Richard Cheney’s chief of staff, in litigation demanding his testimony about the preparation of a legal memorandum justifying torture. In general, Mr. McCain should be asked whether he would facilitate congressional oversight by waiving executive privilege for confidential presidential communications not implicating state secrets.
He should be asked whether he would investigate and prosecute Central Intelligence Agency officials and their superiors implicated in waterboarding. Attorney General Michael B. Mukasey has refused a criminal investigation because the Justice Department gave the green light for waterboarding — a type of “following orders” defense rejected by the Nuremberg Tribunal.
Mr. McCain’s general propositions about checks and balances, simpliciter, are a promising sign he would retreat from the Bush-Cheney plateau of a monarch-like presidency. But more details are imperative.
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.