Open Letter to Law Review Regarding Escalating Constitutional Transgressions by the President

We strongly urge the Harvard Law Review to invite President Barack Obama, a former President of the Law Review, to participate in a symposium organized by you to answer the contemporary constitutional crisis precipitated by the concentration of power in the Office of the President of the United States irrespective of party affiliation. The danger of an omnipotent president is institutional, not personal. Each president betters the instruction of the unconstitutional abuses and usurpations of his predecessor. The Office of the President is no longer under the law, but is the law. A true patriot, Thomas Paine sermonized, saves his country from his government.

Based on secret facts and secret law, the presidency assassinates American citizens on his say-so alone.

Based on secret evidence, the presidency detains American citizens for life without accusation or trial.

In the dark of night, the presidency employs extraordinary renditions to dispatch non-accused detainees to foreign countries for torture or worse.

Without warrants or probable cause, the presidency spies on American citizens, creating intimidating government dossiers (like the Soviet Union).

Invoking state secrets, foreign policy and executive privilege, the presidency blocks the victims of unconstitutional wrongdoing from judicial remedies, including extra-judicial killings.

Violating his constitutional duty to faithfully execute the laws, the presidency refuses to prosecute torture, illegal surveillance and other grave crimes motivated by political advantage.

The presidency usurps the war powers of Congress whom the Constitution’s makers relied upon to prevent ill-conceived military adventures abroad that bankrupt the nation at a frightful cost in human carnage. The presidential war against Libya marks the high water mark of the usurpation. It was initiated without congressional authority. It was continued in violation of the War Powers Resolution. It was fought without funds appropriated by Congress for the purpose. And the presidency claimed constitutional power to war unilaterally in the future whenever the President proclaims some national interest is at stake.

Behind closed doors, the presidency spends trillions of unaudited dollars on objectless military endeavors and bank bailouts.

The presidency issues “signing statements” to circumvent duly enacted legislation.

The presidency substitutes executive agreements for treaties to evade the Senate’s check on ill- conceived international military or economic obligations.

The presidency issues special interest regulations that enable K Street lobbyists to enrich their clients either by direct subsidy or by handicapping competitors.

In sum, the presidency of the United States commands vastly more power over Americans than did King George III whose tyranny provoked the American Revolution.

We are not alone in discerning a presidency claiming and exercising tyrannical powers. The American Bar Association, notorious for caution verging on timidity, has issued three reports on presidential excesses. See Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (August, 2006); Task Force on Domestic Surveillance in the Fight Against Terrorism (February 13, 2006); and, Task Force on Treatment of Enemy Combatants (February, 2003).

The House Judiciary Committee similarly issued a report that chronicles serial constitutional violations of the presidency. See Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush (Jan 13, 2009). George Washington University Law School Professor Jonathan Turley also delineated serial constitutional misconduct in a Washington Post Outlook article; 10 reasons the U.S. is no longer the land of the free (January 13, 2012).

Harvard Law Review is endowed with the intellectual fuel to redress constitutional waywardness. To shy from a candid examination of the presidency at this time of chronic vandalizing of the Constitution because of preoccupation with other legal issues would seem irresponsible—first cousin to Nero’s fiddling while Rome burned. We are confidant you will not shrink from your duty.

We believe your symposium should consider questioning President Obama by yourselves and a panel of renowned constitutional experts about the powers of the presidency enumerated in Article II, As Justice Louis D. Brandeis lectured, sunshine is the best disinfectant. And a more informed citizenry is the bulwark of our Republic.

We are eager to assist in any way you might request in planning and holding the symposium either in Washington, D.C. or Cambridge.

Bruce Fein, Law ’72; North Carolina Representative Walter Jones and Ralph Nader, Law ’58 signed this letter to the Harvard Law Review on January 31, 2012. A signed copy of the letter is available here.

Fein, Nader Speak at Forum, Criticize Obama, Legal Profession

Fein and Nader

Bruce Fein, ’72, and Ralph Nader, ’58, spoke Wednesday at noon at this year’s Forum entitled “America’s Lawless Empire: The Constitutional Crimes of Bush and Obama.”

In his address, Nader called for law students to act to protect the Constitution. “You speak with moral authority to working lawyers and faculty and judges,” he said to attending law students, “You may not know that. But when, in the past, law students put up petitions and proclamations, the rest of the profession knew that those were heartfelt expressions of idealism. They knew that the law students did not have a commericial retainer to motivate them. They knew the law students did not have an axe to grind. And that’s why they knew the law students had moral authority. And you can communicate with tens of thousands of law students, free, over the Internet, which we did not have. And you can mount a movement to restore constitutional practices and the greatest idea of Western civilization, which is due process. Go for it.”

Fein and Nader both criticized President Barak Obama for signing the National Defense Authorization Act. “We are living under a national security state,” Fein said, “All of our rights are at the whim of the President.”

Fein speaking
Fein speaking

Nader echoed that sentiment in his address. “We are two major terrorist strikes away from a police state, the likes of which we will never be able to imagine,” he said.

“It is not an option in a democracy to be a spectator,” Fein said, calling for attendees to act to repeal NDAA, “We have a moral obligation to use our eyes and ears to be a check on the government.”

Nader remarked on the greater number of 1Ls than upperclassmen in attendance at the event, saying that law students enter law school “idealistic, [they] actually think the law has some connection with the word ‘justice’…but by the time [they’re] finished… [they] are heading into these corporate law firms, who are… geniuses at facilitating the subjugation of the law by raw corporate power, all in the name of the law.”
Nader was also highly critical of Obama:”There are well over 300,000 Americans who die from preventable causes and certainly should reside under the definition of national security that aren’t even part of a single dialogue in any political campaign of the major parties. They are not the preoccupation of Barack Obama, who has spent more time figuring out how to kill a suspected terrorist overseas in his briefings every morning than he has spent on all of these preventable American deaths.”
He called for law students to be more active. “You’re behaving as if Harvard Law Schol is a trade school, high price, high fullutent. The difference between a profession and a trade is that a profession is adminstiered to prevent exactly the problem that it is skilled to treat for a retainer…Lawyers should be preventing conflict.” Nader also read from George Washington Law Professor Jonathan Turley’s article, “Ten Reasons We’re No Longer the Land of the Free.” 
Nader and Fein answering questions
Event attendee
Fein answering question from an attendee

America’s Lawless Empire

Among my indelible memories of the Law School in the “conforming Fifties” were two events. One was an address by Robert Hutchins (Dean of Yale Law School at age 29, then President of the University of Chicago) at a packed Austin Hall where he asked us “What is the purpose of the Harvard Law School?” There was a wave of smiles and snickers for what many thought was either an off-the-wall Socratic sally or just Hutchins being Hutchins asking an impossibly provocative question? Why, didn’t he know that Harvard Law School had no collective purpose beyond assembling scholarly faculty and motivated students? Continue reading “America’s Lawless Empire”