The new U.S. Senate is struggling to constitute itself this week, and the picture is a sorry one.
Fights over how and when to seat potential members — who have arrived via controversial elections or even more controversial appointments — give the chamber a sideshow feel at a time when it should be asserting itself as an equal partner in the governance of the country.
Senators swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic” when taking office.
But, for the most part, members of the upper house of Congress are so concerned with petty partisan games and positioning themselves in relation to a hyper-powerful executive branch that they immediately and completely forget about that oath and the duty to maintain the separation of powers defined by the Constitution.
The exception to the misrule is Sen. Russ Feingold, the Wisconsin Democrat who chairs the Judiciary Committee’s subcommittee on the Constitution.
Feingold wants the Senate to get serious about renewing the system of checks and balances that essentially collapsed under the monarchical pressures brought upon it by George Bush, Dick Cheney and their willing accomplices in the House and Senate.
Feingold has been needling President-elect Barack Obama to use his inaugural address to “affirm to the nation, and the world, that respect for the rule of law has returned to the Oval Office.”
In a letter last month to Obama, Feingold wrote, “In light of this recent history, I believe that one of the most important things that you can do as president is to take concrete steps to restore the rule of law in this country — that is, to return to the White House respect for an appropriate separation and balance of powers among the branches, for the president’s important but not paramount place in our constitutional system of government, for the laws that Congress writes and the importance of its oversight functions, and for the judiciary’s crucial role in interpreting the law.”
Feingold’s letter calls the president-elect’s attention to a September hearing of the Constitution subcommittee entitled “Restoring the Rule of Law,” at which more than three dozen historians, law professors and advocates — including John Podesta, now a key player in the transition process — testified.
Out of that hearing came a series of recommendations for steps the new president can and should take to renew the rule of law:
1.) Close the facility at Guantanamo Bay.
2.) Ban torture and establish a single, government-wide standard of humane detainee treatment.
3.) Conduct a comprehensive review of Office of Legal Counsel opinions and repudiate or revise those that overstate executive authority.
4.) Support significant legislative changes to the Patriot Act and the FISA Amendments Act.
5.) Cooperate with congressional oversight, including providing full information to intelligence committees.
6.) Establish presumptions of openness and disclosure in making decisions on the classification of information and respond to requests under the Freedom of Information Act.
Those are all important proposals, and Obama is likely to embrace at least some of them. He has, for instance, signaled that he intends to keep his promise to shutter the detention center at Guantanamo, which came to symbolize the Bush/Cheney administration’s disregard for international law.
But the work of repairing a broken system of checks and balances is not merely the responsibility of the president, as Feingold well recognizes.
“All three branches of government must be engaged in the process of restoring the rule of law,” the senator writes in his letter to Obama.
But, as is proper in the moment when a fresh administration is taking office, Feingold offers the new president an opening to lead.
“The role of the president is particularly important because turning back the excesses of the Bush administration may be seen in some respects as contrary to the institutional interests of the presidency,” the three-term senator, whom Obama once claimed as a role model, explains to the president-elect. “That is why it is all the more important that you clearly and unequivocally renounce, early in your tenure, President Bush’s extreme claims of executive authority. Indeed, stating this position in your inaugural address would affirm to the nation, and the world, that respect for the rule of law has returned to the Oval Office. I urge you to take the opportunity in your first speech as president to make a strong and clear statement of your intention to restore the rule of law in our country.”
Feingold outlines four specific steps that should be taken:
1.) “The new administration should make the restoration and advancement of the rule of law an overarching theme. This should include an explicit rejection of the extreme theory of Article II executive power that the Bush administration has used to justify torture and illegal warrantless wiretapping; a pledge to work with Congress to give priority to measures to restore public confidence in the rule of law; and an announcement of a zero tolerance policy for official misconduct.
2.) “The new administration should recognize and cooperate with the legitimate oversight function of Congress. In certain key areas like interrogation policy and surveillance, Congress was kept in the dark for years and there remain significant impediments to congressional inquiries. I urge your administration to provide requested information on these issues to Congress as soon as possible and to cooperate with future oversight efforts.
3.) “The new administration should view the congressional intelligence committees as a partner rather than a nuisance. It must commit to full compliance with the National Security Act, ending the abuses of the limited ‘Gang of Eight’ (Senate and House leader) notifications and ensuring that the full committees are kept fully and currently informed of all intelligence activities.
4.) “The new administration should conduct a comprehensive review of opinions issued by the Department of Justice Office of Legal Counsel (OLC) under the Bush administration, and repudiate or revise those that overstate executive authority.”
If Obama were to embrace Feingold’s suggestions, he would be a rare president, indeed: one who respects the Constitution, accepts the place of the executive within its framework, and chooses to lead by moral authority rather than the brute force tactics of secret scheming, signing statements and disregard for the rules of law that say wars must be declared, that privacy rights must be preserved and that no one in the custody of the United States can ever be subjected to cruel and unusual punishment.
But if Obama finds it difficult to relinquish some or all of the powers assembled by Bush, Cheney and their henchmen, then the legislative branch must reassert the separation of powers and renew the system of checks and balances. And there would be no better place to begin than by enacting a sense of the Senate resolution formally embracing the proposals Russ Feingold has outlined for renewal of our constitutional republic.