One of my favorite constitutional lawyers is Bruce Fein. Although he is considered a conservative and was one of the authors of the articles of impeachment against President Bill Clinton, Fein advocated for the dual impeachment of Pres. George W. Bush and his vice president, Dick Cheney, during a discussion with then Washington correspondent for The Nation, John Nichols in 2007 with Bill Moyers. So it was no surprise cruising the internet on a train, I found an interview with him with James Carden at The Nation. Although Fein holds many views that I disagree with, I have found his opposition to the use of torture and presidential military intervention unfettered by congress quite compelling arguments.
In his interview with Carden, Fein takes up a discussing of House bill HR 922 which would define “presidential wars” as those not declared by Congress under Article I section 8 of the US Constitution as an impeachable “high crime and misdemeanor.” Fein wrote the bill that was introduced to the House Judiciary Committee by Representatives Walter Jones (R-NC) and Congresswoman Tulsi Gabbard (D-HI) on July 18. Carden notes that the interview with Fein was edited for length and clarity:
James Carden: Mr. Fein, you are a constitutional lawyer who served as an associate deputy attorney general in the Reagan administration. And I know you write frequently on constitutional and foreign policy for The American Conservative, among other publications. What prompted you to take the issue of presidential wars on? Where does your interest stem from?
Bruce Fein: I am keenly interested in war for manifold reasons. War makes what is customarily first-degree murder legal, i.e., intentional killing not in self-defense. War violates the cornerstone precept of civilization: It is better to risk being the victim of injustice than to be complicit in it. War migrates a nation’s collective genius from production to destruction. War squanders vast sums better spent on infrastructure and education in civics indispensable to discharging the obligations of citizens in a republic. The first casualties of war are the rule of law and truth. As Cicero observed, in time of war the law is silent. War gives birth to a surveillance state and the crippling of privacy protected by the Fourth Amendment under a national-security banner. War replaces transparency with secrecy inconsistent with government by the consent of the governed and congressional oversight of the executive. War destroys the Constitution’s separation of powers—a structural Bill of Rights—by entrusting limitless power to the president. If the American people and Congress neglect to terminate and sanction presidential wars, the American republic will crumble like the Roman Colosseum and the sacrifices and hardships of Valley Forge, Cemetery Ridge, and Omaha Beach shall have been in vain. At present, the United States is engaged in nine unconstitutional presidential wars in Libya, Somalia, Yemen, Pakistan, Iraq, Afghanistan, Syria, and against Al Qaeda and ISIS.
JC: For many (or perhaps when you survey today’s Washington, too few) of my generation, George W. Bush’s Iraq II was a big wake-up call, but the trend of untrammeled presidential war making seemed to have begin in earnest under the Clinton administration, during which time the US militarily intervened in Somalia (1993), Haiti (1994), Bosnia (1995), and Kosovo (1999). Clinton also directed airstrikes on Sudan in what was said to be an attempt on Osama bin Laden’s life. Clinton also bombed Iraq (1998) over its violations of the NATO-enforced no-fly zone. And the number of unconstitutional wars has only multiplied under Clinton’s successors. What do you think explains the trend toward presidential wars?
BF: The beginning of presidential wars goes further back than that. Presidential wars began with President Truman’s Korean War, which he styled a “police action.” But it involved more than 5 million US military personnel, 3 million Chinese soldiers, millions of North and South Korean soldiers, millions of casualties, and the risk of nuclear weapons. Then came presidential wars in Vietnam, Laos, Grenada, Panama, Kuwait, etc. The multiplication of presidential wars was sparked by the disintegration of the Soviet empire in 1991 (which acted as a small deterrent) and the blossoming of the American delusion that we won the Cold War because we had a monopoly of angelic DNA and were the new chosen people.
JC: How would this legislation halt these wars?
BF: HR 922 would end this extraconstitutional phenomenon by defining presidential wars as impeachable offenses, which would expose the president to impeachment by the House, conviction by the Senate, and removal from office.
JC: What has been Congress’s role in all of this? They have seemed to have abandoned their constitutional role for the better part of 25 years, at least since George H.W. Bush was compelled by the congressional leadership to win approval for the first Gulf War. What, in your view, explains this abdication?
BF: Congress has scampered away from voting on war because members are risk-averse and a vote for war would be controversial and expose them to criticism or worse if the war went south. But to be clear on the history: George H.W. Bush did not obtain a declaration of war against Iraq in Kuwait in 1991. He asked and received political, not legal, support. The congressional resolution says nothing about a declaration of war against Iraq, but kicks the decision to the president.
JC: A resolution to end presidential wars has been something you and your colleagues at the Committee for the Republic have been advocating for some time, but this is the first time two House members—Walter Jones and Democrat Tulsi Gabbard—have introduced legislation to address the issue in what could be, if passed, the most consequential foreign-policy legislation since the War Powers Resolution of 1973. What are the prospects for passage? Is there a companion bill in the works for the Senate?
BF: The prospects for passage of HR 922 are remote in the short run. Its immediate purpose is to spark a public and congressional debate about war powers that has been generally silenced by both the Republican and Democratic parties since the Korean War in 1950. At present, there is not a companion bill in the Senate because senators sit as triers of fact and adjudicate articles of impeachment voted on by the House.
JC: President Trump campaigned on an “America first” foreign policy, which, according to one well-known study, may have proved the one of the decisive factors in his surprise win over the liberal hawk Hillary Clinton. In other words, there seems to be popular support for a less activist, militarist foreign policy in the US at large, but such views have virtually no constituency here in DC. What do you think explains the—for lack of a better term—popular/elite disconnect?
BF: I disagree. There is no popular disconnect between the elite and the general populace. In our culture, like others, the armored knight moves across the pages of romance and poetry and excites the rapture of the multitude by offering the vicarious thrill of power or domination of others to deflect attention from their philosophically empty souls. We have 4,000 war memorials and museums and virtually none for philosophers or sages like Nestor or Merlin. At the All-Star Game I attended yesterday in DC, the crowd loved the flyovers of fighter-bombers. War is the oldest scourge of mankind, and will always be. The only way to arrest it is to place the war power in an institution with no incentive to exercise it except in self-defense, i.e., Congress with a temperament of a Labrador retriever, not a pit bull like our current executive-branch personality.
I don’t think that this current congress, or even a future one, would have the cajones to pass this and expect a president to sign it, especially Donald Trump. The real solution is for congress to rescind the current Authorization for Use of Military Force and stop abrogating its duty under under Article I section 8 of the US Constitution.
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