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An Interview With Bruce Fein: A Conservative Concerned About Presidential Lawlessness

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The protection of our constitutional system should not be a liberal vs. conservative issue.

But it seems that almost all of those who alarmed about this lawless Bushite presidency are people who would have opposed this administration for policy reasons, even if the Bushites had been the principled conservatives and adherents of traditional morality that they pretend to be.

Meanwhile, almost all of America's conservatives continue blithely along, supporting this president as their man for partisan reasons, apparently either blind or indifferent to the criminality of the regime.

Bruce Fein is a welcome and rare exception to this pattern. A very conservative jurist, one of the leading spokesmen for the Reagan Justice Department in the 1980s, Mr. Fein has been a supporter of the Bush presidency who has risen up to sound the alarm once the pattern of lawless conduct and assault on the American constitutional system became evident.

In the past few weeks, I have conducted an interview of Mr. Fein, in writing. The interview went through six rounds of questions and responses. And that interview is presented in its entirety here, below.


You've read, Mr. Fein, my piece --entitled ‘Alarming, That this Struggle Against the Bushites is So Much a Left-vs.Right Thing'-in which I express my dismay that a person's political ideology seems to be so predictive of whether or not people are alarmed by the apparent lawlessness of the Bush administration. One would like to think –I would like to think-that most Americans would object to presidential lying and law-breaking, regardless of their agreement with that president on other matters of policy. In that entry, I also mention you specifically by name as a ‘noble exception' to this general pattern of politics seeming to trump principle, in that you are both a conservative and an outspoken critic of this administration's apparent assault on the Constitution. And along with my dismay about the general pattern, I also express a wonderment about how someone like you becomes an exception to the rule. Let me start by simply inviting you to respond however you wish to that entry.

I have never perceived our magnificent constitutional dispensation as a partisan issue. As Thomas Jefferson explained in his first inaugural, we are all Federalists, we are all Republicans when it comes to the rule of law and the Constitution's sacred architecture. The Founding Fathers built on a profound understanding of human nature and the propensity of absolute power to deteriorate into absolute corruption and abuses. My convictions about the signature features of the United States that occasioned its blossoming from a tiny nation into a global superpower made my criticisms of Bush's usurpations natural and spontaneous, even though I voted for him twice and praised many of his measures or appointments, e.g., Chief Justice John Roberts and Associate Justice Sam Alito. I do not think my actions especially praiseworthy, and pale in comparison to the many who have given that last full measure of devotion to preserve government of the people, by the people, and for the people. I would surmise that the majority readily succumb to partisanship over principle because they have never struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law.


You write, ‘I would surmise that the majority readily succumb to partisanship over principle because they have never struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law.' You seem to be saying that this majority –by which I am supposing that you mean a majority of your fellow conservatives-can see clearly enough the usurpatious nature of this Bush nature, but do not understand that such usurpations are important. Is that a correct reading of what you are saying? And if it is, does that mean that it is only a rare conservative who recognizes the importance of the American Constitution?

Also, you indicated that you voted for Bush twice. When you voted for him in 2004, did you yet have any of the concerns about this administration you've expressed since? And in any event, would you vote for him now? In other words, in your view, what are the comparative weights you would assign to your agreements on his "measures and appointments" on the one hand, and your concerns about his "usurpations" on the other?


I would amplify as follows. Both conservatives and liberals master only the art of destroying or crippling their political enemies, but learn and care little about bedrock principles that have enabled the nation to grow and prosper with an enlightened balance between order and liberty. They neither recognize nor care about the legal precedents Bush is creating that lie around like loaded weapons for use in the aftermath of any future 9/11 or comparable calamity. They are fixated on the moment and winning political battles by fair means or foul. They would rather the country be convulsed than that their political opponents gain. I have asked Republicans in Congress to worry about ballooning presidential prerogatives since Hillary Clinton may soon be occupying the White House. Their characteristic response is that they will think about it tomorrow like Scarlet O'Hara. I would suggest that it is both the rare conservative and rare liberal who have struggled with the history of the Constitution, The Federalist Papers, John Locke's Second Treatise on Civil Government, and comparable state papers to give them a palpable feel for Bush's treason to the Founding Fathers, for example, insisting that "trust me" should be the measure of our civil liberties.

Also, in 2004, my concerns about Bush had been awakened, but not sufficiently to vote for Kerry. I had assailed Bush's claim of power to detain indefinitely illegal combatants on his say-so alone, and his utopian and calamitous policy in post-Saddam Iraq pivoting on the premise that democracy would emerge spontaneously from the Tigris and Euphrates after 4,000 years of dormancy. Bush's flagrant contempt for the Constitution through the NSA's warrantless surveillance program and sister spying that has yet to be revealed was unknown in 2004. I would not vote for Bush now, nor Kerry either, but would write-in a candidate worthy of the office who would pledge to subordinate partisanship to both the written and unwritten rules of the Constitution. In 2008, that latter test will be decisive in casting my vote for president.


I'm still grappling with that initial matter of why it is that a voice like yours is so rare. I've been surprised by how many people have been letting this president get away with his lawlessness. Are you not surprised?

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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
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