The Most Anemic Branch

By: Bruce Fein
February 19, 2007 07:07 PM EST


The Founding Fathers feared Congress would usurp the powers of the executive and judicial branches. Like a surprise O. Henry ending, however, the legislative branch in recent years has become the most anemic. In national security matters, Congress has ceded the lion's share of authority to the president. In domestic affairs, the White House characteristically leads and Congress either affirms or balks.

Congress' informing function has also withered. It has acquiesced in extravagant claims of executive privilege to enable the president to conceal government mismanagement and lawlessness. Its legislative function has been defanged by signing statements declaring the president's intent to disregard laws he has signed into being because he opines they are unconstitutional -- in practical effect a line-item veto that the Supreme Court struck down in 1998. Congress responded not by welcoming responsibility and accountability for taxing and spending, but by seeking to fashion an alternative line-item veto statute that would further aggrandize the White House.

The diminishment of the legislative branch will not end with the administration of President Bush unless the next president declares that:

-- Signing statements would end.

-- Criminal prosecutions or courts-martial would substitute for military commissions.

-- Secret evidence or testimony extracted by torture or coercion would be excluded.

-- Citizens would not be detained indefinitely as unlawful enemy combatants on the president's say-so alone.

-- All secret spying programs would be disclosed to the relevant congressional committees.

-- The National Security Agency would be precluded from gathering foreign intelligence without warrants in contravention of the Foreign Intelligence Surveillance Act of 1978, as amended six times since 9/11, or its sister statutes.

-- Executive privilege would not be invoked to deny Congress information necessary to oversight.

-- The Great Writ of habeas corpus would be restored to all detainees held in the custody or control of the United States.

-- No individual or organization would be listed as a foreign terrorist or global terrorist organization without a fair hearing.

-- Persons would not be abducted, detained, and tortured in secret prisons abroad.

-- The media would not be prosecuted for publishing national defense or classified information like the CIA's secret prisons in Europe or the National Security Agency's domestic warrantless surveillance program.

The 110th Democratic-controlled Congress, moreover, has shown no inclination to assert its clear constitutional prerogatives on these matters.

Congressional anemia begets twofold evils. Unchecked executive power invariably spawns law violations and abuses of official authority. In the 1970s the Church Committee, a precursor of the Senate Select Committee on Intelligence named for its chairman, Sen. Frank Church, D-Idaho, examined 40 years of unchecked presidential authority to collect intelligence. Its findings were chilling: evidence of illegal mail openings, illegal interceptions of international telegraphs, misuse of the NSA for non-intelligence purposes and burglaries and spying on the likes Martin Luther King Jr., John Lennon and news reporters.

Presidents of both parties are prone to lie to Congress and the public when fearless of timely detection. President Franklin D. Roosevelt lied about Nazi aggression against United States naval vessels to bolster support for entry into World War II. President Lyndon B. Johnson lied about the North Vietnamese attack on the Turner Joy to encourage support for the Gulf of Tonkin Resolution. And President Bush's prevarications regarding Iraq's weapons of mass destruction were calculated to generate support for the Iraq war.

The steady accumulation of power in the executive branch is eerily reminiscent of the destruction of the Roman Republic. If Congress does not assert itself, the decline and fall of the American Republic will be inescapable.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

I have heard Mr Fein at Senate hearings and have great respect for his knowledge and his positions, however to say the 110th has shown no incllinations etc, is hardly fair after only one month of this session in the term of same.

Maybe this will be a good prod to get them on the move ------ was it published in a prominent and well circulated medium ?


lenal