The conservative values that cause Fein to oppose creative judicial expansions of constitutional rights, however, also cause him to oppose "unchecked power [that] invariably degenerates into despotism." And he hardly reserves his venom for the Bush gang. Theodore Roosevelt, another Republican, abused power and engaged in impeachable offenses by tricking the nation into engaging in war, Fein claims. And Franklin Roosevelt, a Democrat, unlawfully and unconstitutionally put American citizens of Japanese ancestry into "concentration camps" based on racist lies told to the Supreme Court. While seeing Richard Nixon resign office in disgrace was "one of the highpoints" of his life, Fein told the ACLUM audience he would have preferred an impeachment trial. Any national trauma suffered, he says, would have been worth the establishment of a clearer precedent (and deterrent) for future lawless presidents, including perjurer Bill Clinton.
Fein, above all, respects process — it is not Bush that he despises; rather, it is the way in which the president has so brazenly flouted the Constitution he was sworn to uphold. As such, Fein warned the ACLUM that citizen vigilance against unchecked executive authority cannot stop when Barack Obama moves into the Oval Office. Indeed, the über-popular president-elect will inherit an executive branch that has seen unprecedented increases in power over the past eight years, and, in reality, for many decades. It'll be up to the people to hold Obama accountable to his promises of increased transparency and respect for our nation's founding documents. Fein, true to his nature, is skeptical — the tolerance of executive over-reaching, he believes, has become too deeply engrained in our political and constitutional culture.
President, Emperor, King
Throughout his decades of public service, in which he had access to a considerable body of classified, as well as recently declassified, national state secrets, Fein says he never came across a leak or disclosure that actually harmed national security. The harm, he warns, is actually done by the classification system itself, which is so overly inclusive that it keeps the nation from discovering executive folly until it's too late.
Fein deems the Bush administration's excessive and obsessive secrecy as the most corrosive element of the past eight years. He compares Bush's secret orders in the "war on terror" to "the practice of Roman emperor Caligula of writing laws high on walls in miniscule print to deny citizens fair warning of what was required."
In his book, Fein shreds the "state-secrets doctrine" that allows the government to claim potential damage to national security as a legal basis to dismiss lawsuits brought against abusive government officials by aggrieved citizens. "The state-secrets doctrine," writes Fein, "is a tyrant's dream policy." And as for the covert practice of extraordinary rendition — whereby CIA officials ship a captive to a cooperating country known to engage in torture — Fein describes it as an "ends justify the means" evasion, the folly of thinking that "the enemy will be defeated by aping the enemy."
For all of the time and energy Fein spends trying to spur members of the legislature to action (he has remarkable access to congressional leaders, who seek his advice on a wide variety of subjects, from telecommunications and energy to civil liberties and international law), he doubts that Congress will oppose any modern president.
