Schmookler:

You write, ‘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.’ You seem to be saying that this majority –by which I am supposing that you mean a majority of your fellow conservatives-can see clearly enough the usurpatious nature of this Bush nature, but do not understand that such usurpations are important. Is that a correct reading of what you are saying? And if it is, does that mean that it is only a rare conservative who recognizes the importance of the American Constitution?

Also, you indicated that you voted for Bush twice. When you voted for him in 2004, did you yet have any of the concerns about this administration you’ve expressed since? And in any event, would you vote for him now? In other words, in your view, what are the comparative weights you would assign to your agreements on his “measures and appointments” on the one hand, and your concerns about his “usurpations” on the other?

Fein:

I would amplify as follows. Both conservatives and liberals master only the art of destroying or crippling their political enemies, but learn and care little about bedrock principles that have enabled the nation to grow and prosper with an enlightened balance between order and liberty. They neither recognize nor care about the legal precedents Bush is creating that lie around like loaded weapons for use in the aftermath of any future 9/11 or comparable calamity. They are fixated on the moment and winning political battles by fair means or foul. They would rather the country be convulsed than that their political opponents gain. I have asked Republicans in Congress to worry about ballooning presidential prerogatives since Hillary Clinton may soon be occupying the White House. Their characteristic response is that they will think about it tomorrow like Scarlet O’Hara. 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.

Also, in 2004, my concerns about Bush had been awakened, but not sufficiently to vote for Kerry. I had assailed Bush’s claim of power to detain indefinitely illegal combatants on his say-so alone, and his utopian and calamitous policy in post-Saddam Iraq pivoting on the premise that democracy would emerge spontaneously from the Tigris and Euphrates after 4,000 years of dormancy. Bush’s flagrant contempt for the Constitution through the NSA’s warrantless surveillance program and sister spying that has yet to be revealed was unknown in 2004. I would not vote for Bush now, nor Kerry either, but would write-in a candidate worthy of the office who would pledge to subordinate partisanship to both the written and unwritten rules of the Constitution. In 2008, that latter test will be decisive in casting my vote for president.

Schmookler:

I’m still grappling with that initial matter of why it is that a voice like yours is so rare. I’ve been surprised by how many people have been letting this president get away with his lawlessness. Are you not surprised?

I’d like to go a bit deeper into the explanation you offered in the first round for why more conservatives have not opposed these usurpations.

You indicated that you thought that what differentiated you from the majority of conservatives was that most of them had not “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.” It appears to me that the “majority” involved here is more like a massively overwhelming majority. Which leads me to want to conduct with you this thought experiment:

Imagine that you and I were talking in 2000, and I asked you to make a list of people like you, i.e. 1) conservative, and 2) understanding of the importance of the Constitution and the rule of law. Would I be correct that you’d have been able to make up a reasonably long list, that you’d be far from the only such person you could think of.

Now as you look at that list, how many of those people have spoken out as you have, opposing these usurpations and expressing alarm at where they may lead? If that list had more than a couple of names on it, and if your explanation of why we’ve not heard more such opposition from the right hits the nail on the head, then there should be plenty of other voices like yours audible in our public discourse. But if that’s so, I’ve not heard them.

That leads to one final and, as you’ll see, somewhat related question.

You mentioned approvingly Bush’s two recent Supreme Court appointments-Roberts and Alito. Now, some people have been concerned that either or both of these men might be people who will use their position on the bench to abet and ratify the usurpations that concern us. From what I’ve read, I can see some basis for these concerns. Do you have any such concerns, i.e. any fear that these new justices will affirm the theories of unchecked presidential power that the Bush administration is employing in its assault on the Constitution?

Fein:

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.

I do not think either Roberts of Alito will bow to Bush’s legal outlandishness. Remember it was Scalia in Hamdi who dissented and insisted Bush could not detain illegal combatants because Congress had not suspended the writ of habeas corpus. Both Roberts and Alito were schooled in the Executive Branch under Reagan, but Robert Jackson was FDR’s Attorney General who defended expansive war powers yet voted against his odious concentration camps of Japanese Americans in Korematsu and against Truman’s seizure of a steel mill during the Korean War in Youngstown Sheet & Tube. We should soon know of their predilections in the pending Hamdan case.

Schmookler:

I am somewhat reassured by your expectations regarding Roberts and Alito and how they’ll deal with the presidential lawlessness that concerns us both. You say that “We should soon know of their predilections in the pending Hamdan case. ”

Two quick questions about that. First, to confirm your expectations –that they will not “bow to Bush’s outlandishness”-what would Roberts and Alito have to declare in that case? Second, were you in agreement with how Roberts ruled in that Hamden/Guantanamo case from the appellate bench? (That was one of the bases on which some people – reasonably, it seemed to me-have had concerns that Roberts might be a willing accomplice of the Bush usurpations.)

Next, I’d like to return to that main thread in our conversation: the question of why a voice like yours –conservative and willing to speak out against “your” president’s lawlessness-has been so rare. You write, “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.”

One very quick question: Do you think this willingness to sell one’s soul is any more prevalent now than at other times in our history?

But to return to that issue of the rarity of principled objections…

I don’t want to put you in an embarrassing position by calling attention once again to that apparent specialness that first led me to you, but surely you recognize that the explanation you offered in the first round has been pretty well disproved by your testimony in the round just completed. You had proposed that it was a kind of ignorance of the importance of the rule of law that led the majority to “succumb to partisanship over principle.” But now it turns out that your conduct differentiates you not only from the ignorant, but also from your learned fellow conservatives.

I will not press you to go further in explaining why you haven’t sold your soul like the rest, but if you’re willing to venture further I would be interested. While it is true that your standing up for principle does not require you to give that “last full measure of devotion” –the moral courage required today is not at the Dietrich Bonhoeffer level-conduct like yours has nonetheless proved disturbingly rare. And so we are left needing to have an explanation either for the soul-selling of the others, or for the rare instance of integrity.

Finally, to go back to a previous statement of yours, where you say that –if the 2004 election were held now– you wouldn’t vote for Bush now, but would not vote for Kerry either. Would that be true even if your vote would determine which of those two would be president, and if your write-in of another (non-candidate) would hand the presidency back to Bush? And if so, would I be correct in inferring from this that, while you disapprove of Bush’s usurpations, you do not believe that this Bush assault on the Constitution represents a truly dangerous threat to the future of our democracy? (I realize, in suggesting such an inference, I am assuming both that you do not think that Kerry would be an equal threat to the Constitution, and that, like me, you weigh CONSEQUENCES heavily in evaluating right action.)

Fein:

I doubt whether Hamden will be a landmark on executive power in times of war. It could pivot on the retroactivity of the Graham-Levin bill that funnels all habeas corpus proceedings to the U.S. Court of Appeals for the District of Columbia Circuit from the Civilian Status Review Tribunals in Gitmo. On the merits in the D.C. Circuit, I concurred with the conclusion of the majority. Al Qaeda fighters are not POWs under the Geneva Convention because they lack the four defined earmarks to qualify for protection, including carrying arms openly and responding to a hierarchy of military authority. The U.S. Supreme Court in Ex Parte Quirin has already approved military commissions for the trial of war crimes, as opposed to court marial proceedings with modestly greater procedural protections, and the military commission created by Bush #43 is indistinguishable from that created by FDR for the Nazi saboteurs. Judge Ray Randolph, who wrote for the majority in Hamden, was not appointed by Bush #43.

I do not believe human nature has since the origin of species. But cultural attitudes can blunt but not eliminate its worst elements. Although every generation has sported its Benedict Arnolds and Aaron Burr’s, I do believe that in the United States at present a high water mark of moral invertebracy has been reached. For example, when I arrived at the Department of Justice 36 years ago, I soon witnessed the resignations of Attorney General Elliot Richardson and Bill Ruckelshouse over Nixon’s order to fire Archibald Cox. In contrast, Clinton’s and Bush’s inner circles and Cabinet remained silent amidst palpable assaults on the rule of law indifferent to Burke’s admonition that evil triumphs when good men and women do nothing. Richardson was acclaimed. Socrates soon had a monument constructed to celebrate his moral courage after the hemlock. Today, both would probably be as naïve utopians.

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.

Schmookler:

I’d like to follow up on several threads in our discussion.

Let’s go back to those 20 people on your hypothetical list-the learned conservatives who you would have thought, in 2000, would have spoken out against a usurpatious president of their own party, but have not. Have you had genuine interactions with some of these people over these issues? If so, what have these been like?

In particular, I’m interested in knowing whether they see what you see –the presidential lawlessness, and the dangers arising from that-and sell their souls anyway (to use your phrase), or whether they believe you are mistaken in your perceptions, and think there’s no illegality, no assault on the Constitution?

Also, would you say something about what the consequences have been for you of your speaking out as you have? We’ve touched upon the fact that –unlike Socrates and Thomas More-you’ve not had to pay with your life for acting in accordance with your principles. But you’ve also mentioned that “learned conservatives generally remain silent because their law and lobby practices require them to maintain access to the Bush administration,” suggesting clearly that there would be a price to pay for speaking out. What kind of price have you had to pay?

Next, I don’t think you’ve indicated –in our discussion here at least-just how great a danger you think this presidential lawlessness poses to our country, to our future freedom and the continuation of the American form of government as we have known it. So I would appreciate your addressing that question. The way you linked, in our most recent exchange, the Clinton and Bush administrations – referring to how “Clinton’s and Bush’s inner circles and Cabinet remained silent amidst palpable assaults on the rule of law”-has raised in my mind the question of whether you think that the likes of what’s happening now happened also under Clinton. More generally, as I’ve been claiming for some while now that the Bush administration’s “assault upon the Constitution” is something unprecedented –in degree, in its systematic nature– in the previous two-plus centuries of American history, I wonder if you would concur with that assessment.

Finally, I’d like to try to clear up my confusion about what you were saying initially about the Hamden case.

I began by asking you to address concerns that Roberts and Alito (whom you’d mentioned favorably) might be Bush’s allies in the usurpations that concern us both. You concluded your response to that inquiry by saying that,” We should soon know of their predilections in the pending Hamdan case.” I thought that you were saying there that what they do in that case will give us a good sign of whether those concerns are well-founded. Did I misread your intent there? I ask that because when I asked what would be the signs from the upcoming Hamden decision would confirm your expectation that neither Roberts nor Alito “will bow to Bush’s legal outlandishness,” you responded with a paragraph that seemed to leave unaddressed that part of my inquiry about this case, except perhaps for the opening sentence in which you said, “I doubt whether Hamden will be a landmark on executive power in times of war,” which seemed like it might be saying that Hamden won’t give us any indication after all.

So I am left wondering: do you think we’ll learn more from this case about whether these two judges “will bow to Bush’s legal outlandishness,” and if so can you give us some idea of what to look for that will tell us whether they are indeed bowing (as some fear) or whether they are the conservatives of integrity that you believe them to be?

Fein:

I have had interactions, but I have not in personal encounters assailed or deplored their silence. I do not believe that I was born God Almighty to serve as a moral prophet ala John Knox. A few have discerned legality in Bush’s illegalities with reason I think are preposterous. But most simply do not believe it their task as private citizens to act as Good Samaritans, especially since the Democrats are intellectually bankrupt.

My speaking out as occasioned a fair share of shrill or vituperative emails, but no face-to-face personal nastiness or ostracism. I do not feel I am encountering a McCarthy-like atmosphere. You never know what kind of business fails to arrive from controversial statements. Whatever price I have paid is ridiculously paltry in comparison to those Lincoln lionized in the Gettysburg Address.

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.

With regard to Hamdan, even if the case is narrow, it would not be surprising if Roberts or Alito took the opportunity to expound a particular philosophy or framework for deciding separation of powers issues in times of belligerency or otherwise, like Jackson’s concurring opinion in Youngstown. They are both young and may be eager to announce signature constitutional frameworks as their first dramatic imprints on the Court. But that is speculation. As a matter of historical practice or law, they may say as much or as little as they wish.

Schmookler:

It sounds as though while you think “Bush’s precedents are dangerous,” that very way of putting it suggests that you are not that worried about what the Bush group themselves may do with the power they are grabbing: if you’re worried about mostly about “precedent,” you are worried mostly about what the present actions may enable some future leaders to do. Is that indeed your greater worry? Your image of the “loaded gun” reinforced that impression: it sounds as though you are more worried about someone else firing off what this group will leave in the room than you’re worried about this group taking this loaded gun and shooting our constitutional system dead. Yes?

And the way you bring in FDR, Nixon, McCarthyism, and Clinton –all under the heading of lawlessness-suggests that you are not of the view that there’s anything unprecedented about the present assault on the constitutional order. (Whereas I have suggested that there’s something so across-the-board and systematic about this assault that it does represent a more thorough-going attempt to dismantle the rule of law than anything previously seen in American history.) Do I read your view of the situation correctly? (If you do not find their conduct more alarming than that, your willingness to break ranks with your fellow conservatives over the Bush lawlessness seems all the more remarkable.)

If you indeed do not worry about the Bush people having loaded the gun so that they themselves can wield and fire it, that may suggest what your answer will be to what I might call my “when the clock strikes thirteen” question, but I would like to ask it anyway.

That name comes from the line, of which I’ve long been fond, that “When the clock strikes thirteen, one questions not only the thirteenth stroke but also all those that have gone before.”

And accordingly, I would like to ask you about whether the Bush lawlessness has had any great impact on how you now perceive other aspects of what this group is about, what it is trying to do, what its moral and ethical nature is, etc. To put my question more specifically: now that you’ve seen how they have behaved with respect to the law and the Constitution, where would you place your perception of this regime along a spectrum that would run from “they’re a fine bunch of good conservatives trying to do good things for good reasons, but just have been careless about this ‘rule of law’ thing” to “with the benefit of my perceiving their lawlessness, I now see a larger pattern of unscrupulousness that pervades all they do”?

Finally, a question to follow up on an earlier thread which led to your declaring, “I do believe that in the United States at present a high water mark of moral invertebracy has been reached.” Do you have any insight or theory concerning why it is that this present time in history would be such a “high water mark,” i.e. why the American society/culture would have reached a low in terms of our overall level of moral fiber and moral courage?

Fein:

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.

Schmookler:

I believe your responses take us very close to the end of our trail. They bring up one last question that has been sitting there from the first round, but that I refrained from pursuing since it seemed somewhat peripheral to the main thrust of our discussion.

You speak here of “the reasons for [nations’] success, and also of the “philosophical underpinnings of [Americans’] freedom and prosperity.” This recalls a comment you made at the outset about your “convictions about the signature features of the United States that occasioned its blossoming from a tiny nation into a global superpower,” which I did not understand at the time but which those more recent comments of yours may help to explain.

It seems now that you are saying that the “blossoming” of America into a great power is a function of various human and institutional virtues (virtues that you now fear are fast eroding). And I am inferring from the general tenor of these remarks that these “underpinnings” are virtuous not just in the Roman sense of being “strengths” but also in a moral sense. Do I infer correctly?

Is it, then, your belief that, in the course of history, those societies that have risen to become great powers in their worlds have been enabled to do so chiefly because their people and their institutions were more characterized than those of other societies by morally virtuous qualities?

I am particularly interested in this issue, inasmuch as one of my own books –entitled THE PARABLE OF THE TRIBES: THE PROBLEM OF POWER IN SOCIAL EVOLUTION-argued otherwise. According to the central idea of that work, while some of the qualities that increase the power of a society are or can be “good” in a moral sense, in the course of history many of the social characteristics that enhance a society’s power have been, in moral terms, quite problematic.

So to what extent would you say that the factors enabling America’s rise to global pre-eminence have been its morally praiseworthy aspects and to what extent would you say that they have been morally questionable or disreputable aspects of this nation?

(It occurs to me that perhaps it is differences in our answers to such questions as this that might account for our having located ourselves on different parts of the political spectrum.)

Fein:

My conception of a great power is a nation that celebrates and applauds civic and private virtues or morality. Whether it happens to be a dominate power on the world stage is a secondary issue. Genghis Khan, Joseph Stalin, Adolph Hitler, among other non-civilized leaders of nations or peoples that dominated other countries for a time through sheer brutality. In other words, global pre-eminence, simpliciter, is not praiseworthy or great. It is only pre-eminence constructed on virtue that deserves homage. The United States became politically and culturally dominant in the past because it served as a beacon to people everywhere of individual dignity, religious freedom and freedom of inquiry, the rule of law, and a status in life based on merit rather than caste. The Statue of Liberty speaks volumes on that score. This beacon was a major factor in attracting plucky and industrious immigrants. It also found expression in China’s Democracy Wall, Charter 77, and Solidarity, among others. But that beacon-based dominance is yielding to dominance resting on military force alone. Afghanis and Iraqis do not receive the United States as did post WW II Japan and Germany and Western Europe with the Marshall Plan. My observation is not to deny many ugly features in the United States in its infancy and adolescence, for example, slavery, national origins immigration quotas, racial and gender discrimination, and religious bigotry. But I do think until recent years our international ambitions were driven more by moral virtue than by a quest to dominate for the sake of dominance or to relish in economic pillage. The latter now seems to be overtaking the former.

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.

Schmookler:

I would like to thank you, Mr. Fein, for giving so generously of your time, and for your thoughtful responses, in the course of this interview. Most of all, I am grateful that you have been speaking up in defense of our precious birthright as a free people, the Constitution and the rule of law. I hope you will continue to raise your voice in that cause.
 

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