Before Inauguration Day, the 111th Congress should pass a forward-looking resolution censuring President Bush and Vice President Dick Cheney for executive aggrandizements or abuses that have reduced Congress to vassalage and shredded the rule of law. The resolution should express a congressional intent to prevent repetitions by the President-elect Barack Obama or his successors. The objective is not Bush-Cheney bashing, but to restore a republican form of government in which "We the People" are sovereign, and the president is checked and publicly scrutinized by Congress and the courts. The Bush-Cheney duumvirate won an undeclared war against the Constitution. Most troublesome, they captured the power to initiate war from a spineless Congress. The Founding Fathers were unanimous in denying the president that constitutional authority. They knew that presidents would chronically deceive Congress and concoct excuses for war to control public information, benefit political friends through government contracts, quell dissent, assert emergency powers and enjoy the intoxicating thrill of, "I came, I saw, I conquered."
By wielding the threat of international terrorism, the Bush-Cheney team put the nation on a permanent war footing - the first time in history that war has been undertaken against a tactic. They maintained that the entire post-9/11 world is an active battlefield where United States military force may be used to kill suspected members of al Qaeda irrespective of international boundaries.
They claimed executive privilege and state secrets to conduct secret government - thereby circumventing political and legal accountability. This included directives to former White House officials Karl Rove and Harriet Miers to flout congressional subpoenas for testimony. They detained hundreds of people (including American citizens) as enemy combatants without accusation or trial. They authorized torture (waterboarding and extraordinary rendition), abductions, secret prisons and illegal surveillance of American citizens.
Like its immediate predecessors, the 110th Congress eagerly yielded its authorities - even the power of the purse - to the president. The Iraqi War Resolution, the $700 billion Troubled Asset Relief Act, the Foreign Intelligence Surveillance Act amendments, and the declination to hold Rove in contempt of Congress were emblematic.
If left unrebuked, the Bush-Cheney usurpations of power will become part of the constitutional firmament and risk creating a safe harbor for future presidential abuses. Every member of Congress, moreover, is required to take an oath to "support (the) Constitution" pursuant to Article VI. There is no corresponding oath to support the Republican or Democratic parties or to subordinate the Constitution in the name of political harmony. Censure would be no novelty.
The Senate voted to rebuke President Andrew Jackson for constitutional lawlessness in 1834: "Resolved, That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both."
The censure resolution we contemplate would enumerate the serial Bush-Cheney constitutional violations; and, censure them for complicity in wrecking the Constitution's finely tuned balance of powers. In two previous congressional sessions, Sen. Russ Feingold, D-Wis., introduced censure resolutions against the president and vice president for deceiving Congress about the war in Iraq and warrantless spying on American citizens in contravention of FISA.
The resolution should also endorse a remedial legislative agenda that would be binding on all future presidents, including the president-elect. It should include a criminal prohibition on intentional misrepresentations to Congress to obtain authorization for war; or, the president's initiation of war without an express congressional mandate. The president's withholding of information demanded by Congress should likewise be prohibited.
An independent prosecutor should be created to prosecute crimes allegedly perpetrated by high-level executive-branch officials in the course of executing presidential directives or defending presidential prerogatives. FISA should be amended to restore individualized warrants based on probable cause to spy on Americans in order to gather foreign intelligence.
Censure will not, by itself, remedy the Bush-Cheney vandalizing of the Constitution. But if members of Congress neglect even that modest step, our republic and democracy will have been irreparably harmed.