by Bruce Fein

President Woodrow Wilson recanted his no-war pledge, President Franklin D. Roosevelt disowned his balanced budget promise and House Speaker Nancy Pelosi, D-Calif., should learn from those examples. She should reconsider her "impeachment [of President Bush] is off the table" pledge. As Ralph Waldo Emerson advised, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

The speaker's reluctance is understandable. The president's tenure expires on Jan. 20, 2009. An impeachment inquiry could embolden al Qaeda, the Taliban, Iraq's insurgents and Iran's nuclear-minded mullahs. President Bush, Vice President Dick Cheney and a majority of Republicans in Congress would attempt to portray the exercise as naked partisanship. Their enthusiasm for impeaching President Bill Clinton over lying under oath about Monica Lewinsky would be no deterrent.

But countervailing constitutional concerns are more compelling. Bush has crippled checks and balances and protections against government abuses. If these claims and practices are not repudiated, the precedents will lie around like loaded weapons, ready for use by any White House incumbent to intimidate rivals or to destroy the rule of law.

The president has reduced Congress to wallpaper. He has asserted executive privilege to foil the congressional power of investigation - the most important because sunshine is the best disinfectant for lawlessness or maladministration. Thus, Bush has claimed inherent constitutional power to prohibit former presidential adviser Karl Rove and former White House counsel Harriet Miers, among others, from testifying about perjury, obstruction of justice or the politicization of law enforcement in conjunction with congressional scrutiny of the firings of nine U.S. attorneys. Even President Richard M. Nixon, whose signature creed was "if the president does it, it's legal," shied from such a monarch-like claim. When former White House counsel John Dean was implicating him in the Watergate coverup by reciting chapter and verse of Oval Office conversations before the Senate Watergate Committee, Nixon never insinuated he could silence his accuser. In contrast, Bush is claiming that secrecy, as opposed to transparency, is the constitutional rule for the executive branch. Government by the consent of the governed, however, requires the people to know what their government is doing to enable them to adjust their political loyalties accordingly.

Bush has hidden from Congress details of the Terrorist Surveillance Program (TSP). It involves the National Security Agency's spying on Americans based on the president's say-so alone in contravention of the Foreign Intelligence Surveillance Act (FISA), which requires judicial warrants. The president has declined to share the number of Americans targeted by the TSP, the intelligence yield, the earmarks employed to identify American targets, or other facts needed for Congress to evaluate its legality or advisability. Indeed, if it were not for an executive branch leak of the TSP to the New York Times, the spying would have been concealed forever with no public discussion or congressional hearings. Sister spying programs remain secret to this very moment.

Bush has claimed constitutional power to gather foreign intelligence by breaking and entering homes, opening mail, kidnapping, or torturing in violation of federal criminal prohibitions. He maintains that every square inch of the United States is a battlefield, where military force or tactics are legitimate, including killing suspected al Qaeda members or affiliates. He has endangered every American traveling abroad by establishing the international law principle that nations are entitled to kidnap, imprison and torture noncitizens who they suspect of sympathy with domestic rebels. He has claimed the United States is in perpetual war with international terrorism that justifies arming the president with perpetual war powers.

Bush routinely issues signing statements that declare his intent to disregard provisions of bills he has signed into law because he asserts they are unconstitutional. The signing statements lacerate the congressional power over legislation. They are indistinguishable from line-item vetoes that were held unconstitutional by the U.S. Supreme Court in Clinton vs. New York. Members of Congress vote on an entire bill, not on a Swiss cheese version. Signing statements entail the enforcement of a law, expurgated by the president, which Congress never passed. The Constitution obligates the president to veto bills he believes are unconstitutional, which offers Congress an opportunity to override by two-thirds majorities.

If House Speaker Pelosi neglects to put impeachment back into the Constitution, an omnipotent, repressive and secret presidency is inescapable. If her constituents voice that concern, it should concentrate her mind wonderfully.

Bruce Fein is a constitutional lawyer, chairman of the American Freedom Agenda, and author of the forthcoming book "Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy [1]" (Palgrave Macmillan).
© 2007 The San Francisco Chronicle