John Whitehead's Commentary
Senator Feingold's Hearing to Restore 'The Rule of Law'
While much of the media was endlessly repeating the same stories ad infinitum about the presidential candidates, the financial crisis or covering the latest O.J. Simpson trial, something encouraging actually took place in Washington, DC. Senator Russell Feingold (D-Wisc.) held a hearing before the Constitution Subcommittee of the U.S. Senate Judiciary Committee on "Restoring the Rule of Law." Specifically, Feingold asked that those testifying provide ways the next president can rescind some of the powers assumed by George W. Bush during his presidency. I was one of those asked to submit testimony. The following are excerpts from that testimony (the complete transcript can be read here):
Over the course of the past seven years, Bush has expanded presidential power to allow government agents to, inter alia, open the private mail of American citizens, assume control of the federal government and declare martial law, as well as to secretly listen in on the telephone calls of American citizens and read our e-mails. Bush has also declared that if he disagrees with a law passed by Congress, he can disregard it. The Bush Administration has repeatedly placed itself above the rule of law in order to justify warrantless wiretapping, the detainment and torture of individuals captured in the war on terror, excessive government secrecy, and claims to executive privilege, among other egregious acts.
This increase in presidential power has been largely carried out under the Bush Administration by way of presidential directives, executive orders and stealth provisions used as a means to lay claim to a host of unprecedented powers. Executive orders remain extant and can be used by future Presidents.
As the various branches of government overstep their authority, it is ultimately up to the people to hold them in check. Congress, as our appointed representative, is the first line of defense. In this regard, Congress has failed in its duty to hold the government--viz, the executive branch--in check. Thus, if there is any hope for restoring the rule of law, it must begin with Congress.
Unprecedented abuse of presidential powers presents a clear and present danger to our country. Each branch of government profits from scrutiny and questioning by the other branches. Because time is of the essence, the necessarily slow-moving judiciary impels Congress to take the lead as the only branch able to hold the executive directly accountable. The rule of law cannot be restored without open and transparent government. Thus, it falls to Congress to check the executive branch when it overreaches its authority. At the least, Congress should immediately move to rescind all executive orders that undermine the rule of law, first by resolution and then by the passage of legislation. Congress should also immediately declare that signing statements such as those used by the Bush Administration to circumvent the law are to be regarded as nothing more than executive commentary and not, as has been the case, as policy.
No single legislative act will substitute for constant vigilance by our congressional leaders. Toward this end, the President should be required to face direct and public questioning from members of Congress on a regular basis, not unlike the practice employed weekly in the British House of Commons, wherein the Prime Minister is called upon to respond to questions from Members of Parliament on any issue. This would serve to hold the President and government to account in a visible way, while acting as a constant reminder that the President is both a citizen and a temporary occupant of office. At a minimum, the President should meet with congressional leadership from key committees on a regular basis. The executive branch must not be permitted to exercise arbitrary authority under the pretext of national security, as has been the Bush Administration's practice. It is especially important that congressional leaders be fully briefed on matters of national security: government by stealth is incompatible with the rule of law.
In order for this to be an effective safeguard, however, Americans must have a clear understanding of their history, the workings of their government, and a thorough knowledge of the Constitution. For this reason, constitutional literacy on the part of the American people, whether or not they are public servants, must be an integral part of the remedy if we are to restore the rule of law in this country.
It is understandable that many Americans feel overwhelmed, powerless, and discouraged in the face of the government's expansive powers, seemingly endless resources, and military might. Even so, that is no excuse for standing silently on the sidelines. American citizens remain our final hope for freedom. Fear, apathy, and escapism will not carry the day. It is within our power to attempt (in a nonviolent way) to make a difference. To this end, Americans must be willing, if need be, to dissent and in so doing speak truth to power. Such citizen participation has often been discouraged, either directly or indirectly, by the Bush Administration. However, Congress should encourage such efforts by way of resolution and/or legislation where necessary.
How best to stop tyranny from triumphing was the central question informing the Constitution and the Bill of Rights. The Constitution provides us with the blueprint for maintaining a balanced republic, and it must always be the starting point. However, each of us, from public officials to citizens, has an affirmative duty to hold our government accountable. It is here that the media has a vital role to play. With its ability to monitor government activity and report to the people, the media serves a crucial role as watchdog in helping to safeguard against abuses of power. Unfortunately, White House briefings and presidential news conferences have become increasingly scripted, ritualized, and lacking in substance. Yet these and other evasive tactics do not absolve the members of the Fourth Estate from doing their jobs, just as entertainment distractions, a dismal economy, and threats of terrorist attack should not keep us from playing our part, as citizens and as public officials.
In the end, however, it is still "we the people" who hold the ultimate power, and with it the concomitant responsibility, to maintain our freedoms. We can afford to remain silent no longer.
Over the course of the past seven years, Bush has expanded presidential power to allow government agents to, inter alia, open the private mail of American citizens, assume control of the federal government and declare martial law, as well as to secretly listen in on the telephone calls of American citizens and read our e-mails. Bush has also declared that if he disagrees with a law passed by Congress, he can disregard it. The Bush Administration has repeatedly placed itself above the rule of law in order to justify warrantless wiretapping, the detainment and torture of individuals captured in the war on terror, excessive government secrecy, and claims to executive privilege, among other egregious acts.
This increase in presidential power has been largely carried out under the Bush Administration by way of presidential directives, executive orders and stealth provisions used as a means to lay claim to a host of unprecedented powers. Executive orders remain extant and can be used by future Presidents.
As the various branches of government overstep their authority, it is ultimately up to the people to hold them in check. Congress, as our appointed representative, is the first line of defense. In this regard, Congress has failed in its duty to hold the government--viz, the executive branch--in check. Thus, if there is any hope for restoring the rule of law, it must begin with Congress.
Unprecedented abuse of presidential powers presents a clear and present danger to our country. Each branch of government profits from scrutiny and questioning by the other branches. Because time is of the essence, the necessarily slow-moving judiciary impels Congress to take the lead as the only branch able to hold the executive directly accountable. The rule of law cannot be restored without open and transparent government. Thus, it falls to Congress to check the executive branch when it overreaches its authority. At the least, Congress should immediately move to rescind all executive orders that undermine the rule of law, first by resolution and then by the passage of legislation. Congress should also immediately declare that signing statements such as those used by the Bush Administration to circumvent the law are to be regarded as nothing more than executive commentary and not, as has been the case, as policy.
No single legislative act will substitute for constant vigilance by our congressional leaders. Toward this end, the President should be required to face direct and public questioning from members of Congress on a regular basis, not unlike the practice employed weekly in the British House of Commons, wherein the Prime Minister is called upon to respond to questions from Members of Parliament on any issue. This would serve to hold the President and government to account in a visible way, while acting as a constant reminder that the President is both a citizen and a temporary occupant of office. At a minimum, the President should meet with congressional leadership from key committees on a regular basis. The executive branch must not be permitted to exercise arbitrary authority under the pretext of national security, as has been the Bush Administration's practice. It is especially important that congressional leaders be fully briefed on matters of national security: government by stealth is incompatible with the rule of law.
In order for this to be an effective safeguard, however, Americans must have a clear understanding of their history, the workings of their government, and a thorough knowledge of the Constitution. For this reason, constitutional literacy on the part of the American people, whether or not they are public servants, must be an integral part of the remedy if we are to restore the rule of law in this country.
It is understandable that many Americans feel overwhelmed, powerless, and discouraged in the face of the government's expansive powers, seemingly endless resources, and military might. Even so, that is no excuse for standing silently on the sidelines. American citizens remain our final hope for freedom. Fear, apathy, and escapism will not carry the day. It is within our power to attempt (in a nonviolent way) to make a difference. To this end, Americans must be willing, if need be, to dissent and in so doing speak truth to power. Such citizen participation has often been discouraged, either directly or indirectly, by the Bush Administration. However, Congress should encourage such efforts by way of resolution and/or legislation where necessary.
How best to stop tyranny from triumphing was the central question informing the Constitution and the Bill of Rights. The Constitution provides us with the blueprint for maintaining a balanced republic, and it must always be the starting point. However, each of us, from public officials to citizens, has an affirmative duty to hold our government accountable. It is here that the media has a vital role to play. With its ability to monitor government activity and report to the people, the media serves a crucial role as watchdog in helping to safeguard against abuses of power. Unfortunately, White House briefings and presidential news conferences have become increasingly scripted, ritualized, and lacking in substance. Yet these and other evasive tactics do not absolve the members of the Fourth Estate from doing their jobs, just as entertainment distractions, a dismal economy, and threats of terrorist attack should not keep us from playing our part, as citizens and as public officials.
In the end, however, it is still "we the people" who hold the ultimate power, and with it the concomitant responsibility, to maintain our freedoms. We can afford to remain silent no longer.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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