A Voice of reason

I love it when I meet (or read something written by) someone with whom I disagree on some particular issues but with whom I am in a more fundamental agreement and this allows me to respect (and often, like) the person while still disagreeing with them. I have just "met" such a person via an e-mail interview posted on Andrew Bard Schmookler's blog. He's Bruce Fein, "life-long doctrinaire conservative and former Reagan administration Justice Department official". Here are some (rather extensive) excerpts, but go read the whole thing. What a breath of fresh air!

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.

[...]

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.

[...]

I have been more disappointed than surprised over the deafening silence of conservatives over Bush’s scorn for the rule of law. My reading of human nature lowered my expectations of intellectual courage. Socrates, my childhood hero, or Sir Thomas More are the rare exceptions. In 2000, my list of vocal critics of Bush’s lawlessness would have approximated 20. Only one has satisfied my expectations, but more with inaudible body language than with verbal shafts. To amplify on my earlier explanation, I believe the learned conservatives generally remain silent because their law and lobby practices require them to maintain access to the Bush administration, and access is power in Washington, D.C. Most people will sell their souls for a mess of pottage.

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The best explanation I have for my devotion to intellectual honesty and principle is my early adulation of Socrates. His defense to the Athenian jury was spellbinding. The unexamined life is not worth living. Never cease asking not whether something promises riches or power or glory, but whether it is moral and the thing you would be eager to enshrine on your gravestone. Taking the hemlock gave Socrates immortality, and his judges ignominy. Without moral and intellectual courage, we would still be living in the Stone Age. I have always felt deeply indebted to our ancestors who sacrificed so much in the name of free minds and self-government. I have previously written that it remains to us to consecrate what they have done, and to act with such moral vision that if the nation endures for ten thousand years nature will still stand up and say to all the world, this was mankind’s finest hour. Between ashes to ashes and dust to dust, there is no higher calling.

With regard to voting in 2004, I would never know whether a vote for Kerry as opposed to a write-in would be the vote that defeated Bush. But if knowing what I know now about Bush and knowing that my vote alone would determine the outcome in 2004, I would vote for Kerry in lieu of a write-in.

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Bush’s precedents are dangerous, and will lie around like loaded weapons readily unleashed by any incumbent in times of strife or conflict, e.g., a second edition of 9/11. Political science, however, remains in its infancy. To predict with exactness the ramifications of lawless precedents on the rule of law and liberties would be folly. For instance, FDR’s lawlessness in WW II, including the odious internments of Japanese Americans, the lawlessness of McCarthyism, the lawlessness of Jim Crow, the lawlessness of Nixon and Clinton’s lying under oath were all serious but have not shipwrecked our constitutional enterprise, at least not yet. But as Justice Brandeis amplified, all government lawlessness is dangerous because it teaches people by its example. We are more likely to lose democracy on the installment plan like the Roman Republic as chronicled by Gibbon than by a military-industrial coup. In addition, we should never be satisfied by simply avoiding being a police state, but as Washington lectured at the Constitutional Convention, we should strive to set a standard to which the wise and honest may repair.

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I am worried about Bush abusing his own precedents along with worries over what his successors might do. At present, the scope of his surveillance or other spying abuses is unknown because they remain largely secret, which is why I have strenuously urged muscular congressional oversight. There may be abuses ongoing that will not be known until years later, just as the abuses discovered by the Church Committee, e.g., illegal mail opening, interceptions of international telegrams, and misuse of the NSA for non-intelligence purposes were not discovered until more than two decades after the fact. If another 9/11 abomination occurred, I think there would be a strong probability that Bush would brandish his precedents to vanquish the Fourth Amendment and to detain citizens based on religion or ethnicity. Everything in life is a matter of degree, and while FDR, Nixon, McCarthyism, and Clinton were occasionally lawless, Bush is systematically so. Thus he is the greater danger. The rule of law can survive a beating once every five or ten years; it cannot survive beatings every five or ten minutes.

In retrospect, I think the Bush administration from the outset believed their loyalty was to their own power or the Republican Party, not to the Constitution or country. I think its intellectual universe is confined to distinctions pivoting on “wedge” issues or strategies calculated to win politically no matter what the cost to the rule of law or constitutional practice. It is temperamentally, intellectually, and morally incapable of statesmanship.

Nations that confront no serious external enemy to remind them of the reasons for their success are inclined to internal rot. That is one lesson from Gibbon’s Decline and Fall. After the Soviet Empire disintegrated in 1991, the Superpower status of the United States became unrivalled. We are no longer encouraged in any respect to think about how we became a Superpower and the citizen virtues that underlie great civilizations. Generally speaking, the questions and issues we have explored in these exchanges never make it on the radar screen of the overwhelming majority who neither understand nor care about the philosophical underpinnings of their freedom and prosperity. But these observations are made with a high degree of conjecture. If I knew the answer as to why moral invertebracy in the United States as reached its apogee, I would be a genius, which I am not.

[..]

Wisdom is more an intellectual and moral attitude than a store of knowledge. No one enjoys a monopoly on truth. No one is infallible. No one is pure saint. Humility and charity should guide action and inquiry into moral truths. The way in which that quest is undertaken is the difference between civilization and barbarism.

Glenn Greenwald was so impressed with the interview that he wrote:

If I could force every self-proclaimed conservative to read one interview, it would be this one.

Fein is particularly persuasive when it comes to imparting the depressingly difficult-to-convey point that critiques of the Bush administration's theories of executive power have nothing to do with liberal or conservative ideology, except to the extent that unlimited executive power is squarely at odds with ostensible conservative principles

Christy at FDL has this to say:

... the concept of liberty and of rule of law and all of the concerns that we have, individually and collectively, regarding the Bush Administration’s and the Republican Rubber Stamp Congress’ disregard for the long-term consequences of their appalling failure to live up to balance of powers expectations and the poor precedent that is being set by a number of their ill-considered actions [...] seems perfect for this Fourth of July holiday period.