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Is There a War on the Bill of Rights? An Interview with Bruce Fein

By John W. Whitehead
July 27, 2007

Bruce FeinBruce Fein graduated from Harvard Law School with honors in 1972. After completing a federal judicial clerkship, he continued to serve in the public sphere. Fein has worked in an impressive assortment of areas in constitutional law, both in the local and international arena. Many distinguished national publications such as the New York Times, Financial Times, Washington Post, Chicago Tribune and Newsweek, among others, recognize his expertise. 
As a member of the U.S. Department of Justice, Fein served as assistant director of the Office of Legal Policy, legal adviser to the Assistant Attorney General for Antitrust and as Associate Deputy Attorney General under President Ronald Reagan. He has also served as an appointed general counsel to the Federal Communications Commission and as research director for the Joint Congressional Committee on Covert Arms Sales to Iran.  As a member of the American Bar Association’s Task Force on Presidential Signing Statements, he has worked to publicize President Bush’s dismissal of checks and balances in the government. 
Fein has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Bookings Institute and an adjunct professor at George Washington University. He has also been executive editor of World Intelligence Review, a periodical devoted to national security and intelligence issues.
Internationally, Fein has assisted in the construction or revision of the constitutions of three dozen countries, including Russia, Spain, South Africa, Iraq, Cyprus and Mozambique. He has acted as a consultant for foreign nations in areas as varied as telecommunications and cable regulation, sugar quotas, oil and gas pipelines, immigration, election laws and human rights. He regularly lectures to foreign guests and dignitaries visiting the United States on behalf of the State Department.
Presently, he writes weekly columns for The Washington Times and and is a guest columnist for numerous other periodicals. He is invited to testify regularly before Congress and administrative agencies by both Democrats and Republicans. He appears frequently on national and international television, cable and radio programs as an expert in foreign affairs, international and constitutional law, telecommunications, terrorism, national security and related subjects. He is a regular guest at the BBC, C-SPAN, CNN, Reuters, MSNBC and NPR. In March 2007, he co-founded the American Freedom Agenda, which calls for Republicans to turn back to traditional conservative values, particularly limited government.

His books include Constitutional Peril: The Life and Death Struggle Over the Constitution and Democracy. He has authored several volumes on the U.S. Supreme Court, the U.S. Constitution and international law. Some notable writings include articles advocating the impeachment of former President Bill Clinton and Vice President Dick Cheney.

Mr. Fein took a few minutes out of his busy schedule to discuss current issues surrounding constitutional freedoms and the current war on terrorism.

John Whitehead: Is there a war on the Bill of Rights? Are our freedoms in jeopardy? For example, people are being labeled enemy combatants and jailed. They’re not allowed to see a lawyer. President Bush has pushed stealth legislation through Congress, which gives him the power to declare martial law for basically any reason. The President of the United States has bypassed the FISA court and allowed the National Security Agency to spy on domestic phone calls made by American citizens. The President advocated the Patriot Act. As a result of which, for example, FBI agents are showing up at people’s doors to investigate them and are intimidating them because they have anti-Bush posters. The FBI has gone to libraries demanding the names and records of people to find out what books they’re reading. There is a shroud of secrecy around the White House. People who work for the President, such as Alberto Gonzales, are called before Congress and refuse to answer questions. It seems to me that our Constitution is being undermined. What’s going on?

Bruce Fein: There certainly is a war on the Bill of Rights. It is more intense and successful, in a grim way, than the war against terrorism. And it is largely there because the President and members of Congress have artificially inflated the danger of international terrorism. I’m not suggesting that it isn’t a genuine danger, but it’s not World War II. It’s not the 3-million-man Red Army. It’s not 10,000 nuclear warheads that could destroy millions overnight. And by this artificial inflation, President Bush has sought to justify these extraordinary measures that depart from our most fundamental checks and balances and protections against government abuses—all of which have been hallmark protections since our country’s inception. Some of these rights, such as the privilege of habeas corpus, are simply the right to ask a clerk to decide whether a detainee is being held lawfully. This goes back eight centuries to the Magna Charta of 1215. But we’re abandoning these fundamental principles in order to create an atmosphere of fear and intimidation, which increases government power.

JW: Would you say we’re facing a propaganda war?

BF: Calling it propaganda might be a little bit too derogatory, but by and large that’s the core of the issue. There has not been a fair calculation of the Al-Qaeda danger level by the Bush Administration. Why is it said to be the equivalent of the Bolsheviks or Hitler or Hirohito? These leaders had million-man armies and the most sophisticated scientists building the most advanced chemical biological nuclear weapons. How can that be?

JW: Some experts indicate that the number of true Al-Qaeda terrorist types in the country is small.                                                                                                               
BF: That’s because this country doesn’t create the kind of hatred and extremism that would result in that kind of demented behavior. That doesn’t mean, of course, that there aren’t evil people here. Timothy McVeigh was evil. He killed hundreds in the bombing of the Oklahoma City Federal Building, but it didn’t mean we were at war. We had snipers in Washington, D.C. a few years ago. That created a grave danger, but it didn’t mean we were at war. 

JW: We’re dealing with criminals.   

BF: Yes, we are dealing with criminals, and the criminal process is adequate. And I think it’s wrong for the Bush Administration to suggest that the criminal is backward-looking. The President is only trying to punish people after a dastardly deed has been accomplished. The vast majority of our success in anti-terrorist prosecutions has been conspiracies. They would have been stopped at the very early stages. 

JW: Through civilian courts.     

BF: Yes, through civilian courts—not any military commissions or enemy combatant tribunals or otherwise. This is not to say that it is conceivable down the road that the terrorism threat could rise to a higher level. However, we have to keep our due process and constitutional protections intact and commensurate with a level of the danger. The fact is that we have learned much since 9/11. What might have been feared in a fog of uncertainty a few hours after 9/11 has been proven to be imaginary fear. Thus, we can rely upon our customary due process in criminal law procedures to ensure that we punish the guilty. But we certainly don’t want to punish the innocent. We must also take measures to secure the spontaneity and freedom to criticize government without fear. That is so essential to keeping our democratic discourse open and vibrant. And the fact is that when a society, when Congress, becomes timid, we end up with a very unwise and oftentimes great folly abroad. In my judgment, a large reason the Iraq war has degenerated into the situation it has is because there weren’t checks. People feared that if they criticized the President or even criticized a marginal effort to go after Al-Qaeda in Iraq, they would be accused of either being a terrorist or supporting terrorists. Thus, to go back to your initial question, yes, there is a systematic assault on the Constitution, on the Bill of Rights, without even justification other than political expedience in thinking you can profit off of frightening the people.   

JW: Isn’t it Congress’ job to hold the President responsible?                                  

BF: Of course. They take an oath to support and defend the Constitution. Their job is to provide oversight. And it is important, since Congress appropriates every dollar the President spends in foreign policy or otherwise. Congress needs to know why that dollar is being spent. It ought to be spent in a way that is consistent with our international stature and commiserate with Congress’ own values. That is where Congress has totally fallen down.                                                                                                                                

JW: Those who drafted the Constitution—the so-called Founding Fathers—what would they think about all this?                                                                                                  

BF: They would be horrified because the fundamental idea of the founding generation was that, first, a chief mission of the state is to make men and women free and to pursue their ambitions. It was not in creating government and empires. The second thing they understood was that human nature is inclined to abuse power when it is unchecked. This idea of “trust me” should not be the measure of our civil liberties. Checks and balances by the three co-equal branches of government is another essential. All this ensures that we live in a free society and that we do not go on adventures abroad to serve a political purpose.

JW: James Madison said we should mistrust all those in power. Thomas Jefferson said this as well.

BF: Absolutely. They also said that those who hope to be both free and ignorant hope what never can be. The fact is that Congress is thinking about keeping us in ignorance by not exposing the nature of the spying programs and the various incendiary elements that went into the decision-making process in Iraq. None of this will make us stronger, nor will it lead to freedom. In fact, we will be weaker because we won’t know how to cure the problems that have led to our current calamitous situation in the Middle East. 

JW: Over the past several years, there have been a number of surveys which indicate that the American people have little, if any, knowledge of what’s in the Bill of Rights. Although the Bill of Rights is only 462 words, the American people don’t know what’s in those 462 words. If that is true, is there hope? If our freedoms are diminishing, we may wake up one morning and the President of the United States may have declared martial law. We may well be under a dictatorship.  How do we stop that? What is the hope?

BF: John, history is biography. It seems to me that we have the capacity to change the situation through insisting on upgraded education and civic responsibility. These must be taught in the school, in the home, in our own private lives. That is all we can do as individual citizens. We have the right to petition Congress and the government for redress of our grievances and to create an educational system and a civic culture that encourages knowledge and mastery of our democratic dispensation so those 462 words will be mastered and fully appreciated in their philosophical sense. That is what we can do as individuals. Is it a guaranteed success? No. But no enterprise that’s worth undertaking ever begins with a guaranteed success. If that were true, then you wouldn’t need to undertake the enterprise. And so all individuals need to hold themselves responsible for the education and the involvement in public affairs that are required for a government to operate at the behest of the consent of the governed.                                                       

JW: The Constitution starts with those three beautiful words in the Preamble, “We the people.” You’re saying it’s the people’s job to keep themselves free. If they don’t, then it’s the people who are the enemy of freedom.

BF: That is correct. President Grover Cleveland mentioned it in his Second Inaugural Address. To paraphrase him, he said that he took an oath to uphold and defend the Constitution of the United States. But he said it’s not just my obligation. It’s yours as a people to hold him accountable and to be ever vigilant and to ensure that every other office holder enforces and defends the Constitution as he sees it. So that idea of the earth belonging only to officials and government is wrong-headed. We all have an oath, written and unwritten, as Americans to ensure that our Constitution thrives and flourishes every day of the week.