January 7, 2006
Five years after President Bush joked, "If this were a dictatorship,
it’d be a heck of a lot easier, just so long as I’m the dictator," we
look at the growing controversy over presidential power and how it
relates to many of today’s biggest stories: the Senate ban on torture,
the nomination of Samuel Alito to the Supreme Court, domestic
surveillance and the jailing of U.S. citizens as enemy combatants.
Earlier this week three influential Republicans Senators condemned Bush
for claiming he has the authority to ignore a new law banning the
torture of prisoners during interrogations. [includes rush transcript]
Three influential Republicans Senators are condemning President
Bush for claiming he has the authority to ignore a new law banning the
torture of prisoners during interrogations. Bush signed the torture ban
just last week. But he also quietly issued what is known as a signing
statement in which he lays out his interpretation of the new law. In
this document Bush declared that he will view the interrogation limits
in the context of his broader powers to protect national security.
Legal experts say this means Bush believes he can waive the
anti-torture restrictions. This is not sitting well with some
Republican Senators, including John Warner, who chairs the Senate Armed
Services Committee, John McCain and Lindsey Graham.
Graham told the
Boston Globe, "I do not believe that any political figure in the
country has the ability to set aside any law of armed conflict that we
have adopted or treaties that we have ratified."
This marks the
latest example of a growing divide between Congress and the White House
over the extent of the president’s power. This question has factored
into the debates on a number of key issues: the president’s order for
the National Security Agency to conduct domestic spying operations
without legally required warrants; the administration’s covert program
of kidnapping wanted individuals overseas known as extraordinary
rendition; the president’s policy of detaining U.S. citizens without
charges claiming they are enemy combatants; and the president’s
declaration that the Geneva Conventions do not apply to suspected
members of Al Qaeda. Last month President Bush defended bypassing the
Foreign Intelligence Surveillance or FISA Court to directly order the
NSA to eavesdrop on phone and email conversations inside the country.
Vice President Dick Cheney and others have long defended such executive
power. Cheney told reporters earlier this week ""I believe in a strong,
robust executive authority, and I think that the world we live in
- President Bush: "We use FISA still -- you're
referring to the FISA court in your question -- of course, we use
FISAs. But FISA is for long-term monitoring. What is needed in order to
protect the American people is the ability to move quickly to detect.
Now, having suggested this idea, I then, obviously, went to the
question, is it legal to do so? I am -- I swore to uphold the laws. Do
I have the legal authority to do this? And the answer is, absolutely."
Ever since the Sept. 11 attacks, legal experts within the Justice
Department have claimed the president has near imperial powers. Shortly
after the attacks Justice Department attorney John Yoo wrote that
Congress could not place "limits on the president’s determinations as
to any terrorist threat, the amount of military force to be used in
response, or the method, timing and nature of the response." Yoo went
on to write "These decisions under our Constitution, are for the
president alone to make."
At the time Yoo was the deputy assistant attorney general in
the Office of Legal Counsel at the Justice Department. He is now a law
professor at the University of California, Berkeley.
But on several occasions the courts have expressed reservations about the president seizing such powers.
Last year Sandra Day O’Connor said "A state of war is not a blank check for the president when it comes to the rights
of the nation’s citizens."
As for President Bush he once suggested in jest that it would be
easier if he were a dictator. This is what the President-elect said
five years ago during his first visit to Capitol Hill following the
- President Bush: "If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator."
Today we are going to examine the issue of presidential powers with two guests:
- David Golove, New York University law professor who specializes in executive power issues.
- Scott Horton, chairman of the International Law Committee of the New York City Bar Association and adjunct Professor at Columbia University.
AMY GOODMAN: Last month, President Bush defended bypassing
the Foreign Intelligence Surveillance Act, or FISA, court to directly
order the NSA to eavesdrop on phone and email conversations inside the
PRESIDENT GEORGE W. BUSH: You're referring to the
FISA court in your question. Of course, we use FISAs, but FISAs is for
long-term monitoring. What is needed in order to protect the American
people is the ability to move quickly to detect. Having suggested this
idea, I then, obviously, went to the question: Is it legal to do so?
AMY GOODMAN: Vice President Dick Cheney and others have long
defended such executive power. Cheney told reporters earlier this week,
quote, "I believe in a strong, robust executive authority, and I think
that the world we live in demands it."
JUAN GONZALEZ: Ever since the September 11th attacks,
legal experts within the Justice Department have claimed the President
has near imperial powers. Shortly after the attacks, Justice Department
attorney John Yoo wrote that Congress could not place, quote, "limits"
on the President's determinations as to any terrorist threat, the
amount of military force to be used in response, or the method, timing
and nature of the response. Yoo went on to write, quote, "These
decisions under our Constitution are for the President alone to make."
At the time, Yoo was a deputy assistant attorney general in
the Office of Legal Counsel at the Justice Department. He's now a law
professor at the University of California, Berkeley, but on several
occasions the courts have expressed reservations about the President
seizing such powers. Last year, Sandra Day O’Connor said, quote, "A
state of war is not a blank check for the President when it comes to
the rights of the nation's citizens." As for President Bush, he once
suggested, in jest, that it would be easier if he were a dictator. This
is what the President-elect said five years ago, during his first visit
to Capitol Hill, following the 2000 election.
PRESIDENT GEORGE W. BUSH: If this were a dictatorship, it would be a heck of a lot easier. Just so long as I'm the dictator.
AMY GOODMAN: Today, we're going to examine the issue of
presidential powers with two guests: David Golove is a New York
University law professor who specializes in issues of executive power;
Scott Horton is also joining us, Chair of the International Law
Committee of the New York City Bar Association. He is also an adjunct
professor at Columbia University. We welcome you both to Democracy Now!
I want to start off with the signing statement -- many people
have perhaps never even heard of that term, a "signing statement’" --
that President Bush quietly signed off on at the same time he signed
the much-heralded McCain bill, the act that says that the U.S.
government, that no representative of the government will engage in
cruel, inhuman, degrading treatment of others. Your response, Professor
DAVID GOLOVE: Yes, well, the signing statement’s not a
legal document. It's a practice which was not invented by the Bush
administration. But a recent article by a professor from Portland State
University, I believe, Phillip Cooper, shows that the Bush
administration has used signing statements in the way that has been
employed in this case on, I think, 500 occasions, or they've – maybe it
was that they’ve claimed that there were unconstitutional provisions
500 times in these various signing statements. So it's some practice
which has now become very common.
It's not a legal document. It has no legal force. It's a
statement of the President's opinion about the law that is going into
effect, because he's signing the law. But it tells us something very
important about what the President's intentions are with respect to
that law. And when the President says in the signing statement that the
law is unconstitutional in some respect, he's telling us that he
doesn't intend to follow the law, if it's not in his judgment the right
thing to do.
JUAN GONZALEZ: And are these signing statements, are
these then, do they become part of administration policy? Are they
shared with those departmental officials that are in charge of
implementing various laws, as directives? I mean, what happens to them?
DAVID GOLOVE: Well, technically, there aren't rules that
govern how these are used. But as a practical matter, of course, yes,
the answer is yes, they are made for a purpose, and they are to signal
to the officials in the relevant agencies how the President views this
law and what they should do in implementing the law or not implementing
the law, as the case may be.
AMY GOODMAN: I wanted to ask you, Scott Horton, about the José Padilla case, the significance of the Supreme Court decision.
SCOTT HORTON: Well, I think, in a sense, the decision
that was just handed down, turning him over to a civilian authority for
the commencement of the criminal case, is not a surprising one. The
decision that the Fourth Circuit had put down a couple of weeks ago,
denying his turnover, was really more of an expression of judicial
outrage at the Department of Justice. It was a group of judges, very
conservative Republican appointee judges, saying, 'We feel that we have
been misled by the Department of Justice, and in response, we're not
going to permit this. We want the Supreme Court to look at it and make
a decision.’ And now they've made that decision. I don't think it's a
JUAN GONZALEZ: But the continuing problem of the
administration, basically holding him under suspicion of being a dirty
bomber and then lowering the charges in terms of what they're looking
at, in terms of a civilian court. Your concern and response about that?
SCOTT HORTON: Well, I think it's quite clear --
remember, this case got started with a press conference that was held
in Moscow by John Ashcroft. I mean, as it’s all developed, that was a
very appropriate location for the announcement, with very dramatic
statements being made about Padilla's involvement with plans for a
dirty bomb to be unleashed in an American metropolis, and so forth. And
it's turned out that there really wasn't evidence to support these
charges, and what's being brought now are far more modest charges.
Indeed, we know that there was a considerable discussion within the
administration about the idea of just turning Padilla free at some
point. So there's clearly been a high degree of theatrics on the part
of the administration with respect to this case, and when push comes to
shove, it's not had the evidence to back up its claims.
AMY GOODMAN: And Scott Horton, your response on McCain, on that bill passing, and the signing statement?
SCOTT HORTON: Well, I think this is a striking example
that puts a spotlight on a much broader issue of reservation by the
executive. And I think if we look at this in context, what it means is
a secret government, effectively. We have hundreds of pieces of
legislation that have been enacted by Congress, and we have the
administration reserving, effectively, whether it's going to enforce
these laws or not, and that means if we look at the totality of the
United States code, there are many, many provisions where we simply
don't know if these things are the law and the contemplation of the
government. That's a constitutional crisis.
DAVID GOLOVE: I might want to add, that it's not only
the bills that are affected by the signing statements that are under a
cloud now, because we know that the criminal statutes, which Congress
has passed over the years, even before the Bush administration came
into office; the torture statute, the statute that makes it a felony
offense to commit grave breaches of the Geneva Conventions; the FISA
statute, which deals with electronic surveillance; and a number of
other statutes –
SCOTT HORTON: The Uniform Code of Military Justice --
DAVID GOLOVE: The Uniform Code of Military Justice, which
has governed our military since the beginning of our history; all of
these, the administration has claimed to be unconstitutional in various
respects and has done so secretly. Those claims of unconstitutionality,
we only know about because, eventually, documents were leaked. But the
administration has taken upon itself to claim that they're
unconstitutional, in secret, to not apply those laws. And only when the
information came out can we even have a public debate about the
questions that these raise.
JUAN GONZALEZ: Well, I’d like to ask Scott Horton about
the whole issue of Samuel Alito's nomination to the Supreme Court and
his view on presidential powers, and several -- the Boston Globe
is reporting that several senators -- Ed Kennedy, Charles Schumer and
Patrick Leahy -- are planning to make that a major issue in the
confirmation hearings, as to his past views on presidential powers.
Could you talk about that a little bit?
SCOTT HORTON: Well, in fact, also Jess Bravin in the Wall Street Journal
yesterday had a major article, I think an extremely good and insightful
article, on exactly this issue, and these questions are closely
related. The presidential statement made about McCain, and Judge Alito,
if we look back at the history of the development of this device,
presidential statements, presidential reservations of rights, the idea
of the unitary executive, it's quite clear that Judge Alito is one of
the intellectual authors of this entire approach. And he has
consistently taken a view of executive rights and executive
prerogatives that is extreme. Clearly, also he's had the view that in
wartime, the commander-in-chief powers trump other powers and may trump
legislation that Congress has enacted, so this is an alarming factor.
And I think we need to view this in another context, too. If
we look at the three nominees that the President has put forward --
Judge Roberts, Harriet Miers, whose nomination was withdrawn, and now
Sam Alito -- these nominees all have one thing in common, which is that
they have embraced this extremely radical view of executive
prerogative; particularly when we view the executive vis-à-vis the
courts and the Congress, they have embraced the view of an imperial
AMY GOODMAN: Professor Golove, your response on that?
DAVID GOLOVE: Well, my response is largely that I think I
agree with what Scott Horton has said. I think it's a major concern in
relation to the Alito hearings and the confirmation process. I think in
the next five or ten years, it's fair to say that the major, major
constitutional questions that will come before the Supreme Court will
deal with the scope of executive power, rather than the scope of civil
liberties, as we generally have understood them and has been so
controversial in the past.
And so these issues need to be focused on very closely,
because the balance in the court is at stake with Justice O’Connor
stepping down, particularly, who was a justice who tended to find
herself in the middle of the court, wrote the decision for the court in
the Hamdi case, which did indeed impose some constitutional
limitations on executive power, and as the quote that you read before
suggests, she does not view the commander-in-chief power as a blank
check for the President to do whatever he wishes, without regard to the
AMY GOODMAN: Explain the Hamdi case.
DAVID GOLOVE: Well, the Hamdi case is interesting also in light of the discussion of the Padilla case, because the Hamdi
case was another American citizen who was deemed an enemy combatant. He
was actually captured in Afghanistan and then brought eventually to the
United States and was held in military custody for two years, most of
that time incommunicado in solitary confinement, not even being allowed
to see a lawyer.
The case -- the administration claimed in that case, as they claim in the Padilla
case, that the judiciary had no authority to review, in any respect,
what it was that the administration was doing, once it had deemed
somebody an enemy combatant. No due process was required. Eventually
the case did go to the United States Supreme Court, and Justice
O’Connor wrote the opinion for the court, which is where the quote
comes from, and Justice O’Connor said that in this particular narrow
instance of an American citizen, who was actually captured abroad on a
foreign battlefield in Afghanistan, the President did have authority
under the law that authorized the use of force in Afghanistan to hold
him as an enemy combatant, but that due process still applied, and that
he needed to be giving a hearing.
Now once the Supreme Court announced that Hamdi had to have a
hearing, the administration very rapidly decided to release him, rather
than to actually go forward and present evidence to an impartial
tribunal that would have shown the basis on which it was holding Hamdi.
And there's a disturbing parallel, I think, with the Padilla
case, because, here again, the administration, at least, even if the
Supreme Court had been willing to uphold the President's power to hold
him as an enemy combatant, which was very, very doubtful, but had it
done so, they would have had to give him a hearing, as well, and I
think they didn't relish the idea of giving him a hearing.
AMY GOODMAN: We're talking to Professor David Golove,
N.Y.U. law professor, specializes in issues of executive power, teaches
constitutional law and international law; and Scott Horton, Chair of
the International Law Committee at the New York City Bar Association.
We’ll be back with the two of them in a minute.
AMY GOODMAN: Our guests are Professor David Golove of New
York University Law School and Scott Horton, Chair of the International
Law Committee at the New York City Bar Association. We're talking about
issues of executive power. Professor Golove, you were saying this is of
particular importance in the Sam Alito hearings. Can you explain his
history on this?
DAVID GOLOVE: Well, it's hard to speak too
specifically. There have been a number of memorandum that he wrote over
time that dealt with various executive power issues. I think it's maybe
best to speak of them as a collective body, and I think that Scott
Horton's characterization of them as a collective body of views about
executive power suggests that Judge Alito does indeed share many of the
ideas that the Bush administration shares about executive power and
that he's likely -- of course, it's impossible always to say what
someone will do when they sit on the Supreme Court. We have too much
experience with appointees doing things that are unexpected once they
arrive at the court.
But he's been on the Court of Appeals now for many years and
has a long record, so we have reason to believe that he'll continue to
act in the way that he's acted in the past, or his views are similar to
the views he's expressed in the past. And I think those views, taken as
a whole, suggest that he has quite an extreme view of executive power,
that is similar to the kinds of views that have been expressed by the
JUAN GONZALEZ: Turning to another issue, because
there's so many now in terms of this issue of presidential abuse of
power, the National Security Agency's domestic spying directive that
the President allows the N.S.A. now to spy on American citizens, as
well; could you talk a little bit about that and the implications
SCOTT HORTON: Well, I think it fits in with a pattern
that we saw starting with the torture scandal. And the torture scandal,
of course, we had a criminal statute -- the anti-torture statute. We
also had the Uniform Code of Military Justice that precluded a number
of the things that were being done. And in this case, the FISA Act
envisioned that the N.S.A. would engage in wiretapping, including
wiretapping of American citizens. But it provided a special expedited
process through which that was to be authorized; warrants were to be
obtained ex parte through a special secret court.
And what we know now is, of course, that that process was
avoided, that it began to be avoided after the court itself began
raising questions about some of the requests that were made, and
particularly, this has to do with roving wiretaps. It seems clear that
a couple of judges questioned whether they could be authorized under
any circumstances. Instead of coming back and presenting a better case
for it, the administration simply decided to do it on its own
initiative without judicial approval. And we now know through
disclosures that have appeared in the Washington Post and The New York Times
just in the last week that indeed a lot of this wiretapping commenced
without even presidential direction or authorization, which makes it
plainly illegal, even under the administration's own theory that the
President could authorize it.
AMY GOODMAN: I wanted to read a piece from the Washington Post
of yesterday, of January 5th. It says, "Members of the secret federal
court that oversee government surveillance and espionage in terrorism
cases are scheduled to receive a classified briefing Monday from top
Justice Department intelligence officials about the controversial
warrant-less eavesdropping program, according to sources familiar with
the arrangements. Several judges on the Foreign Intelligence
Surveillance court said they want to hear directly from administration
officials why Bush believed that he had authority to order, without the
court's permission, wiretapping of some phone calls and emails after
September 11th attacks. Of serious concern to several judges is whether
any information gleaned from intercepts by the N.S.A. was later used to
gain their permission for wiretaps without the source being disclosed.
The court, made up of 11 judges on a rotating basis, hear government
applications for surveillance warrants."
And it goes on to talk about how "Last Friday an attorney for
Seifulla Chapman, one of the men convicted as part of the Virginia
jihad network, formerly asked federal prosecutors in Virginia to
determine whether warrant-less N.S.A. wiretaps were used to gain
information about his client. Chapman, serving a 65-year sentence for
conspiring to provide material support to a foreign terrorist group, he
was the subject of a secret FISA warrant. Some judges who spoke on
condition of anonymity said they want to know whether warrants they
signed were tainted by the N.S.A. program. Depending on the answers,
the judges said they could demand some proof that wiretap applications
that were not improperly obtained." Now, this goes to overturning cases
that have already been decided. Also, one of the FISA judges has
already resigned. Your response.
SCOTT HORTON: Well, I think it's a very significant
development that's going to complicate a number of these pending
prosecutions in terror cases. I mean, we know, for instance, again
through investigative reporting, that one of the more confrontational
hearings occurred in the FISA court occurred when an F.B.I. agent made
representations that the court later determined to be fraudulent
misrepresentations. And they refused to receive any further
applications from that agent. So there seems to be a rising level of
doubt or suspicion on the part of the court about the honesty of the
representations that are being made by the administration in seeking
AMY GOODMAN: That's when the applications are made. What about when they're not?
SCOTT HORTON: And that's another problem. But I think,
you know, specifically they, of course, are concerned when people come
before them and make applications, are they using poisoned fruit, we
would call it? That is, are they using results they got from unlawful
wiretaps to make the new applications? Because, of course, that would
not be permitted, that would be unlawful. And it's important that the
court make inquiry into that and act on it.
JUAN GONZALEZ: What is the impact around the world
when, week after week, we're getting reports in the American media
about our own federal government circumventing and skirting and
sometimes violating our own laws on judicial procedure? What is the
impact worldwide of these constant revelations?
SCOTT HORTON: Well, I think the U.S. has been viewed
as, you know, the carrier of the banner of civil liberties in the world
for generations. And this is certainly undermining our reputation
around the world. But I think, more specifically, it's causing
suspicion to be focused on the Bush administration itself, and on the
person of George Bush and Dick Cheney, and their intentions. It raises
questions, frankly, about the criminality of this administration. And
in particular, I’d focus on the situation in Europe today, where we
have arrest warrants outstanding and issued for more than 20 C.I.A.
agents, impending investigations, which touch on dozens more federal
employees. Now, their conduct may be viewed as in the national security
interests in the United States, but in the countries in which they're
acting, it's viewed simply as torture, kidnapping, assault, simple
AMY GOODMAN: We're talking to Scott Horton, Chair of
the International Law Committee of the New York City Bar Association,
and NYU law professor, David Golove.
DAVID GOLOVE: There's another aspect of the matter
concerning the judges on the FISA court that you brought up. I think
it's an example of how the separation of power system on our
constitutional order is finally beginning to assert itself. I think it
began with the Supreme Court's decisions in the major cases that came
before it the summer before last, the Hamdi case, which we discussed, the Rasul
case, which held that the courts would supervise executive action in
Guantanamo Bay. And now we see it with the lower court judges, in the
FISA court, and we see it in Congress, as well, where the McCain bill
was just passed by overwhelming majorities. I think that's a healthy
sign of the robustness of our constitutional system and our
But the signing statement, to go back to where we started, is
an indication that the administration is going to fight back. Its first
approach was to assert very broad powers secretly, and not only to
assert the powers, but to act on the assertions of powers in memos,
which were written by mid-level Justice Department officials, asserting
constitutional claims of a very extreme character. And in fact, the
memos that have been revealed, have been leaked, show that the legal
reasoning that was used to justify these claims was very, very thin, at
So now that the various aspects of this have come to public
light, we're seeing a reaction in the other branches of the government.
And yet, the signing statement tells us that it was one thing, maybe
initially, to fight it in secret, and now the administration at least
is coming forward more publicly and announcing, albeit quietly, that it
doesn't necessarily intend to listen to what the other branches have to
AMY GOODMAN: Scott Horton, I want to ask you about
General Ricardo Sanchez, Lieutenant General. His career seems to be
ending. He’s retiring. Can you talk about his significance in the Abu
Ghraib case, and what this means?
SCOTT HORTON: Well, I think, you know, there was an
effort made to acquit him in the Abu Ghraib case early on, but the
documentary evidence that's accumulated subsequently puts more and more
suspicion on General Sanchez, continues to suggest that he wasn’t
acting alone in some of the activities that he supervised, but he was
acting, in fact, in direct coordination with the Secretary of Defense,
Secretary of Defense's office. So there's been a lot of concern about
what was going to happen with him right now. It's clear that Rumsfeld
was trying to protect him, but now his career seems to have come to an
end, on the basis of the fact that there's no way any new appointment
for him would require review and approval by the Senate. And it's quite
clear that leadership in the Senate and both parties, frankly, would
have placed a hold on him.
AMY GOODMAN: And what about responsibility at Abu
Ghraib? We had General Karpinski, though she has been demoted, no
longer a general. She, it seems, has been the highest-ranking person to
be blamed for this.
SCOTT HORTON: Well, I think we can say clearly that the
last word has not been written on the command responsibility issue.
There's going to be a lot more that’ll happen on this. There's going to
be litigation about it in the courts. And I think, ultimately, there's
going to be further criminal prosecution, and that prosecution is
almost inevitably going to involve General Sanchez and probably also
the Secretary of Defense, whether as witnesses or as defendants.
AMY GOODMAN: Well, I want to thank you both very much
for being with us. We've been joined by Scott Horton, Chair of the
International Law Committee of New York City Bar Association, and David
Golove, NYU law professor, teaching constitutional and international
law. Thank you for joining us.
DAVID GOLOVE: Thank you.
SCOTT HORTON: Thank you.
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