The
segments included in this interview excerpt were recorded
in January 2004, as part of THE COST OF FREEDOM- Civil
Liberties, Security and the USA PATRIOT Act, a look
at the history of civil liberties in America and the
controversy surrounding the USA PATRIOT Act. The documentary
is a co-production with Iowa Public Television. Louis
Fisher is a Senior specialist in the separation of
powers with the Congressional Research Service of
the Library of the Congress. He is the author of Nazi
Saboteurs on Trial.
(*
This transcript has been edited due to length.)
Having
studied the Nazi saboteur trial in great depth, what
do you believe happens to constitutional values in
times of war?
In
time of war, certainly World War II, the Supreme Court
was not going to challenge anything that Roosevelt
as Commander-in-Chief did. And when the Supreme Court
wrote the Ex Parte Quirin case they had some nice
language there that says that the courts are there
to protect individual rights in time of war, in time
of peace. But obviously that wasn't to be the case.
It's not until long after the war is over that the
courts feel emboldened enough--usually after the president
has gone--to make some stands in defense of civil
liberty.
A
lot of the current debate revolves around two cases--Milligan
and Quirin, can you briefly explain the background
to each case and what court rulings resulted?
Well
Milligan was someone who was brought before the Supreme
Court on an appeal that he had been unfairly detained
during the Civil War. By the time it reached the Supreme
Court the war was over. President Lincoln was dead
and some of the very cautionary actions by the Supreme
Court in earlier cases were now put aside and the
Supreme Court in the Milligan case said that in time
of war so long as the civil courts are opening and
operating that you cannot try someone by military
tribunal as they wanted to do with Milligan. So that
was an example of a court after the war being able
to reassert judicial scrutiny. In the case of Ex Parte
Quirin in 1942 right in the middle of the war the
Supreme Court was not going to challenge a judgement
by President Roosevelt even though the justices knew
that President Roosevelt had violated a number of
what are called the articles of war. These were statutory
provisions dictating how military trials should be
run. So even with that the Supreme Court was under
great pressure internally to uphold the jurisdiction
of the military tribunal in time of war.
Can
you talk to the precedent the justice dept. is using
(Ex Parte Quirin) to justify the establishment of
military tribunals.
The
justice department right now is looking very much
to the Quirin case for support as to how it’s
handling what's called enemy combatants and that phrase
is used in the Quirin case. Enemy combatants or illegal
combatants are those who come not in uniform but in
civilian clothes to do the work of an enemy. There's
really little connection between the Nazi saboteurs
in 1942 and the current cases of Hamdi and Padilla.
Because with the Nazi saboteurs they were apprehended,
they were charged with four counts, they were given
counsel and there was a trial. Whereas in the case
of Hamdi and Padilla they are not being charged, they
have no access to counsel, and they can be held the
administration says as long as the administration
wants. So there's night and day difference between
the Nazi saboteurs and Padilla and Hamdi.
So
the comparison is a poor fit? Are there any points
of similarity?
If
you look at the history of the United States they
broke with some of the British precedents where military
matters were either under the king or executive officials.
If you look at the U.S. Constitution you can see how
much of that was placed with congress. So Congress
throughout the years had passed statutes directing
how a court marital would be directed and what the
charges would be and what the penalties would be.
What the Quirin case is interesting is that two of
the charges were under articles of war--those are
statutory creations. One was executive made; it was
a law of war. The executive branch would look under
certain international rules or international customs
to decide what would be a law of war that would be
the third charge. And the fourth charge was a general
one of conspiracy. So under the Quirin case you had
a mix of executive creations--the law of war-- and
legislative creations--articles of war. Whereas in
the current time you're not charging anyone and Hamdi
and Padilla with any action. So that there's no charges
and the Justice Department argues if there are no
charges why do you need an attorney? So there's no
attorney either.
So
do presidents by themselves have the power to create
military tribunals?
Well
part of the US constitution that has always been distinctive
is to rely not on power concentrated in the executive
or the king but rather in the deliberative process
and a very sophisticated system of checks and balances
the separation of powers so that power is not placed
in the hands of one person. And if you look at the
Nazi saboteur case that's violated in the sense that
President Roosevelt was the one on his own by military
order and proclamation to create a military tribunal.
It was President Roosevelt who named the members of
the tribunals--the generals all subordinates to him.
It was President Roosevelt who named the prosecutors--Attorney
General Biddle and Judge Advocate General Cramer--both
subordinates to him. President Roosevelt named the
defense counsel--Colonels--subordinate to him. And
after the tribunal was over and they made a judgement
where would the record go, the trial record? It would
go to the reviewing officer. And who would that be?
President Roosevelt! So there's a totally tight circle
entirely within one branch without any legislative
or judicial check.
How
did Congress react to that?
Congress
in 1942 was just an onlooker just watched what Roosevelt
did. There was no effort by anyone in Congress and
certainly no committee of Congress took any steps
to scrutinize, or to override or to have any legislative
participation. They were comfortable in letting the
president run the whole show.
How does compare to today's
Congress?
When
President Bush on November 13, 2001 authorized the
creation of a military tribunal, the Senate judiciary
hearing held specially invited Attorney General John
Ashcroft to come. The focus would be on the military
tribunal. And Attorney General Ashcroft at the hearing
said anyone who criticizes the administration is helping
the terrorist--helping the enemy. The next day the
Justice Department explained that's not exactly what
Ashcroft meant. He meant that anyone who makes misstatements
about the administration is helping the enemy. Well
of course this administration makes those misstatements
all the time and we don't say they're helping the
enemy. So right from the start, any effort at legislative
scrutiny or oversight hearings was rebuffed by the
administration. And there were very few members of
Congress willing to challenge the administration.
I've
also heard the explanation that Congress' silence
simply means that members agree with the administration
and therefore doesn't need to challenge it. Isn't
that an alternative explanation?
Well
I came to CRS in the 1970s and I worked with a lot
of members and committees that cared a lot about separation
of powers and legislative prerogatives. There are
very few people that I know today that take that as
an interest. There are a lot of reasons for that.
When I came in 1970 Nixon was in office and there
were many disputes. But to care about legislative
prerogatives I think you have to take time here to
learn about the institution. I think campaign finance
makes it very difficult, how much time is spent raising
money. I don't think that that corrupts members but
it certainly takes away the time that members need
to look after their own institution. And there are
many other reasons why members of Congress today and
the committees of Congress today are not watching
out over their own institution, which is what the
framers assumed. The framers assumed that any time
one branch would be invaded by another you would fight
off the incursion. That has not been happening for
quite some time.
Is
the imbalance of power that you describe typically
a reflection of a war climate?
Well
in time of war the courts traditionally in the past
did take war power cases. From 1800 up through the
steel seizure case under Truman in 1952 courts regularly
took war power cases and the only one that I can think
of is after the Civil War that there was one case
the Supreme Court with good reason decided to duck.
From Vietnam up to the present time courts duck every
war power case. And they do it under either saying
the party has no standing, or that the issue is moot,
or that's its not ripe enough or it' s a political
question or other kinds of standards. So we haven't
had the Supreme Court since 1952 when they struck
down Truman's seizure of the steel mills we haven't
had a court challenge a president. And instead its
made it very clear that the debate over the constitutionality
of war powers is between the two branches --the legislature
and the executive. And if the legislative branch doesn't
do anything we have the concentration of power in
the president.
In
your book you compare the truth and reality of the
saboteurs capture. Can you talk to what actually happened,
how the FBI said it happened and why the need to maintain
the public face had an impact on the eventual decision
to initiate a military trial?
Well
it was very interesting in 1942 to create a military
tribunal because they had not been used really since
the Civil War. There was one small incident in World
War One. So not from the 1860s to 1942 did we have
any experience with military tribunals. And I think
there are two reasons why the Roosevelt administration
created a military tribunal. One, is that they were
going to try the Germans in a regular civil court
and the person there were interrogating George Dasch
expected that--go in to civil court, plead guilty,
and he said will there be much attention? No just
plead guilty. He says I have relatives in Germany.
No, just plead guilty! And then one morning when he
woke up and looked at the newspaper and saw his photograph
on it now he said I want to go into court and tell
the whole story which would mean that he would explain
how he turned himself in and helped the FBI find the
other seven. And the administration didn't want that
to be public because they would want Germany and other
countries to know that we have this real crackerjack
way of finding saboteurs that come on our shores.
And so that was one reason for a military tribunal.
And the other was that people in the administration
who looked at what kind of a penalty could be applied
to the eight Germans they couldn't find any law that
would give them much more than two or three years
in jail. And President Roosevelt was intent on making
sure that most of them would be executed so that was
a second reason to go to a military tribunal to avoid
the restrictions of a civil trial.
Royall,
in defending the Germans, argued that there was serious
legal doubt as to the constitutionality of Roosevelt's
executive order. Why did he believe that to be the
case? Can you talk us through his arguments?
The
strongest argument that Colonel Royall had as defense
counsel would be to say that Roosevelt had violated
different articles of war created by the Congress.
And in fact the justices of the Supreme Court recognized
that Roosevelt had violated the articles. That was
his strongest ground but what the Supreme Court decided
its mission was to limit itself to whether the military
tribunal was the proper jurisdiction. And all the
other issues of articles of war or difficulties in
the procedures inside the trial would be things that
the Supreme Court would not look at. It simply didn't
have jurisdiction. It was not proper. And they closed
the door after that.
Why
did the prosecution believe its case was constitutional?
Please talk me through the government's argument.
The
Justice Department could always cite some of the early
examples, some of them from the Civil War that the
president had authority as commander in chief to create
military tribunals. And that argument is strongest
when you're in a place, say Mexico, where there are
not civil courts available and General Scott at that
time created military tribunals. But he never argued
that he had full authority to do that. He did that
as an emergency measure and he said that if Congress
wanted to override him or change what he did he recognized
that the power lay with Congress and not with the
executive branch. So the administration could argue
best when you have no civil courts to address these
matters to. And that was the difficult for the administration
then. There were civil courts operating and there
were many people who helped the eight Germans and
they were all prosecuted in civil court. So I think
the reason for not going to civil court was not that
they weren't open they weren't functioning but because
you couldn't get a death penalty under the charges
that could be brought and they didn't want to publicize
the fact that the Germans had essentially turned themselves
in to the FBI.
What
was the public 's reaction to all of this?
Well
the public was fascinated. There was a lot of press
coverage of the boxes of explosives and fuses and
so forth that were found on the beaches that the Germans
brought in. This is all photographs in the newspapers
it was fascinating to have the eight Germans in a
DC jail being brought each day with these trucks and
jeeps and everything from the US district jail to
the Justice Department building where the trial was
held. So this was circus and a lot of carnival atmosphere
to it. And so in terms of public attention it was
fascinating. But there were people in the administration;
particularly Secretary of War Henry Stimpson who did
not like this and did not think this was the proper
way to do it. And years would go by until late in
1944 when two more were found submarining from Germany
and this time Stimpson insisted that the matter be
handled professionally through the military; not through
a show trial in the Justice Department. And Stimpson
won and the trial was held up in Governors Island.
How
do you think that compares to the general public today
in relation to matters like Guantánomo?
I
don't know if the public can keep track of some of
the cases. Padilla was the one who was picked up in
Chicago O'Hare airport. He was initially not charged
with any crime. He was held as a material witness
which means that he had access to an attorney. And
the administration thought he had information that
would help them on another case. So he was brought
into New York City as a material witness and then
suddenly the after several court appearances and with
the assistance of his trial attorney Donna Newman,
the administration picked him up out of New York City
and brought him to a naval brig and she has not had
access to him since that time. He was supposedly bringing
in a dirty bomb. We don't know what evidence there
is on that score. There are other matters such as
the Zacarias Moussaoui case of a French citizen with
a background from Morocco. He's in civil trial, so
we can do that. We can have a terrorist in civil court.
But the picture on that has changed too because he
was at first called the twentieth highjacker. Then
the Justice Department seemed to have dropped that
theory and now they're talking about him as maybe
being part of a second wave. I don't know how strong
that theory is being pushed. But whatever it was Judge
Brinkamar handling the case and looking at all the
classified information that the administration made
available to her made the judgment that there is no
way you can justify the death penalty. And that was
her decision on that mater. So these issues have been
looked up and there are many loops and complications
even for those who follow them. The general public
probably only gets a general picture as to what is
happening. And even Hamdi and Padilla they're both
US citizens but there might be many citizens today
who don't regard them as real US citizens--not people
who were born here, who grew up here who had backgrounds
in the Middle East.
What
was the justification for allowing two American citizens
to be tried by military tribunal? How does that compare
to President Bush's order?
Of
the eight German saboteurs, two had claims for citizenship.
One was Pete Berger who was Dasch's roommate in New
York City and agreed to turn himself in. He was a
naturalized US citizen but when he went back to Germany
he joined the army and even his attorney Royall agreed
that that action by him meant that he would forfeit
his citizenship. So his counsel never argued strongly.
The one who had the higher claim was Haupt. His parents
were in Chicago and he was a US citizen. But to the
Supreme Court it didn't matter whether you were a
US citizen or not; that if you came to this country
to carry out the actions of the enemy, particularly
if you came in civilian clothes and you were not a
prisoner of war then you could be treated as an enemy
combatant and prosecuted and citizenship didn't play
into it.
And
today?
It's
interesting once with 9/11 Bush fairly rapidly put
out a military order authorizing a military tribunal
and if you look at the language of the Bush order
and compare it the one Roosevelt issued in 1942 its
obviously borrowed extensively from it. There could
have been arguments that Bush would have been on stronger
ground to go to Congress and get authority which I
think he would have unquestionably gotten from Congress.
And then he would have had not only whatever powers
he thinks he has as President, but he would have been
acting on statutory powers and I think that would
have protected him in any type of challenge in the
court. And I think that is going to be strong issue
in the Padilla case because what the Second Circuit
did was to say that the administration is operating
against the statute that Congress passed saying you
cannot detain a U.S. citizen without authority of
law. So you have a President operating on maybe what
he says are his powers as commander-in-chief. But
in this case, in the Padilla case he's operating in
the face of a congressional statute and that historically
has always been the lowest point for presidential
power when you're acting in an area that Congress
has considered and filled with a statute. You act
in violation of that you're most likely to be turned
down by the courts.
In
reaching its conclusion the Supreme Court limited
its decision and left, you say, Milligan untouched.
Can you explain the rationale behind this?
The
administration hoped to have Milligan overturned one
hundred percent because that that decisions was wrongly
reasoned and they thought it interfered with the powers
the President ought to have in time of war in time
of emergency. In fact the Supreme Court in the Quirin
case only only slightly adjusted Milligan. It still
upheld the notion which is true today which is if
the courts are open and they're operating and that
should be...What the Supreme Court said in Quirin
they held on to the notion in Milligan that if the
courts are open and operating you have to work through
that and not through the military court. But certainly
they carved new ground that if you are a US citizen
as Milligan had been, as Haupt was - Herbert Haupt,
that doesn't matter. If you come here as a...to carry
out the work of an enemy you can be brought in and
tried in military court. So that was a new precedent.
Milligan was kept with that one exception.
Why
did it take so long for the Supreme Court to issue
its full decision?
Once
the decision, the case went to the United States Supreme
Court many people kinda congratulated the United States
look at this we have saboteurs here and we're going
to give them nine hours to argue their case before
the US Supreme Court. But when you look at the procedure
it's not attractive at all. Colonel Royall was in
the military tribunal and he decided to take a couple
of days off and see if he could go into civil court
and get a writ of habeas corpus to challenge the jurisdiction
of the military tribunals. And he had met first with
Justice Hugo Black in his Alexandria home in the middle
of the summer. And Black arranged for Royall to go
outside of Philadelphia to Justice Robert's farm.
And Attorney General Biddle was there and Judge Advocate
General Cramer was there and from the farm they called
Chief Justice Stone to see what his thoughts were
about hearing oral arguments. And there was agreement
to do it but Royall who had practiced mostly in North
Carolina wasn't familiar with the federal procedure
and he hadn't gone to any lower court so although
the date was set for oral arguments it wasn't until
one evening that Royall went to district court got
turned down at 8 p.m. and oral arguments before the
US Supreme Court started at noon the next day. The
briefs to alert the court to what the issues were
were not filed until the same day as oral arguments
so the court justices were not prepared. And Justice
Frankfurter at oral arguments asked Royall how can
you be here? You haven't even been to appellate court
and Royall said I've been very busy. Is it possible
for us to keep talking and I'll get the papers over
there? And so there were two days of oral argument.
On the third day when the Supreme Court was ready
to hand out its decision they hadn't heard from the
DC circuit and they get the papers from the DC circuit
around I think 11:55 in the morning and the Supreme
Court grants, that is they take the case from the
DC circuit and then at twelve o'clock hand down the
decision. So it was that kind of a scrunched timetable
throughout the trial. And what the court did when
they handed down a decision was it was a precurium--it
was for the court, it was a one-pager upholding the
jurisdiction of the military tribunal without any
legal reasoning. Because they didn't have time and
they weren't even sure what the legal reasoning was.
So all the precurium said is we'll be coming down
with a full opinion. And it took the court three months
to do that and within a week a week and a half six
of the eight Germans had been electrocuted. So they
was hardly anything the Supreme Court can do in the
full opinion to cast doubt on what it said in the
precurium. So you have this situation of the court
now having to come up with reasons after the fact,
knowing that Roosevelt had violated articles of war
and trying to figure out what kind of full opion they
can do without disgracing the court. Afterwards even
justices who voted in the Quirin case like Justice
Douglas or Justice Frankfurter looked back at that
experience and realized that was something the court
should not do. They should not take the court in that
timeframe, come up with a quick precurium, and then
after the fact figures out what the legal reasons
would be.
In
your book you point out and examine a number of similarities
between Roosevelt's order and President Bush's 2001
order. Can you talk us through the similarities?
There
were not any significant differences between what
President Bush did on November 13 and what the Roosevelt
administration did in 1942. They both allowed the
...Roosevelt had allowed the President to appoint
all the people he did, the tribunal, the counsel and
so forth and to have the trial record go back to him.
Bush followed that scheme also, but in the case of
Bush its improved a bit because under Roosevelt there
were no rules for court procedure in the military
tribunal. Whereas in the case with Bush as we don't
have a military tribunal yet there's been time to
work out a set of procedures and rules; the Pentagon
has released them in draft form, the American Bar
Association and other groups have commented on them
so we now have a fairly extensive set of rules that
would govern in the case of a military tribunal. So
that has been an improvement on the side of the Bush
administration.
In
the case of Quirin you had eight Germans who had been
picked up with the help of Dasch and Berger. You found
the boxes of dynamite and fuses on the beach. There
was no question that they came here to commit sabotage
and so you had a full story on them. Compare that
to the enemy combatants today, particularly Hamdi
and Padilla. There's no such evidence of Padilla being
charged as sort of a dirty bomber. Hamdi being picked
up in Afghanistan, so what evidence do w have to make
them an enemy combatant? To deny them counsel? Not
charge them with anything and to let them be detained
as long as the administration wants. It turned out
the administration had to put together what is called
a Mobbs declaration--m-o-b-b-s. He's someone who works
in the Pentagon. And he actually knows nothing about
Padill and Hamdi. What Mobbs did was to go through
a lot of intelligence documents and based on that
put together a three or four page declaration justifying
the designation of enemy combatant. But we don't know
the value of the intelligence material he has because
some of that came from the Northern Alliance in the
war in Afghanistan. And the people in the Northern
Alliance, the Tajaks and Uzbeks were asked we've just
picked this person up. Tell us if he's a Taliban or
if he's connected to al-Qaeda. The newspaper stories
say that if the Northern Alliance said that if they
said Taliban they would get five thousand dollars
each and if they said al-Qaeda they'd get twenty thousand
dollars each. So you have this monetary incentive.
The Northern Alliance to make certain designations
or determinations and all this is being brought in
before someone. In the case of Mobbs. In the civil
court none of this could be introduced because it's
all hearsay. Mobbs knows nothing other than what he
reads in intelligence statements.
In
your opinion, are military tribunals a real cause
for concern?
Even
the Roosevelt administration had cause for concern
about the Quirin trial. Secretary of War Stimpson
thought it was absurd that Attorney General Biddle
was going to take a month off to be a prosecutor.
And Stimpson was also offended that the other prosecutor
was Judge Advocate General Cramer because the Judge
Advocate General should be at the end of the line
to make sure that justice was done and procedures
were correct. He should be at the end. He should not
be at the start as a prosecutor. There are many other
things about the way the trial was conducted that
offended Stimpson, so when two more people came from
Germany in November 1944 and made their way from Maine
to Boston down to New York City and were picked up,
Biddle was still there still wanting to prosecute
the second case, Cramer was going to be a co-prosecutor
and Stimpson said no no no we're not going through
this again! And Stimpson was successful. He lobbied
a lot within the administration and he was successful
in having it taken away from the Justice Department
and being put with professionals in the military and
handled up in Governors Island in New York City. And
that was an example than even the administration inside
recognized that what it did in 1942 with the eight
German saboteurs was not a good precedent and it should
be made more professional and given to people who
have studied the law, who are capable of reviewing
the record and who have a legal background. And so
even the administration turned its back on what it
did in 1942.
You
have also suggested that the Supreme Court deliberately
avoided discussing some of the trickier aspects of
the Quirin case. Can you explain?
One
of the problems for the Supreme Court even on the
first day of oral arguments was whether some of the
justices should be disqualified. Frank Murphy had
already disqualified himself because he was in the
reserves--military reserves. So that left eight justices.
One of the first issues was whether Chief Justice
Stone should sit because his son Lawson was working
with the defense on the Nazi saboteurs. And Attorney
General Biddle said that's not a problem because although
he is working on defense he's not working on the writ
of habeas corpus and that's the distinction. And so
Stone asked Colonel Royall for the defense you see
a problem with that and Royall agreed with Biddle.
So it looked like it had been choreographed that Stone
would now sit. But there were two other justices who
probably should not have sat. Justice Felix Frankfurter
had a habit of going over to the administration and
meeting with Roosevelt, meeting with Stimpson and
meeting with others and early on when the eight Germans
were captured Frankfurter had dinner with Stimpson.
Frankfurter said there should be a military tribunal
and it shouldn't be a mix of military and civilian
it should be all military and so Frankfurter had already
staked out a claim. That was he would continue to
sit and he wrote later something a soliloquy by Frankfurter
that was just amazing piece of harsh rhetoric to show
that there was no objectivity or lack of bias in Frankfurter.
And the other one who should probably have disqualified
himself was James Burns. He was over at the administration
so much they thought he'd taken leave from the Supreme
Court. But Biddle would write him letters --dear Jimmy
here's a draft executive order could you look at it?
Here's a draft war powers bill could you take a look
at it? Here's a bill can you see that it gets through
Congress? This is a justice of the Supreme Court.
And Burns had been in the US Senate so you have him
with a conflict of interest lack of independence.
You have other problems; the justices recognizing
that Roosevelt violated express language in in the
statutes, articles of war. They decided not to go
into that in their decision. They settled some things,
US citizens can be handled, but otherwise it was going
to be a deferring on the part of the judiciary to
a decision that the President Roosevelt had made as
to the necessity of a military tribunal and they would
not go beyond that. There’s one other thing.
After the decision was handed down Justice Frankfurter
asked one of his former students, Frederick Bernays
Wiener what he thought of the decision. And Wiener
by this time he was a distinguished expert on military
law. And Wiener wrote three letters to Frankfurter
and he just ripped the Supreme Court for its ignorance
of the law for the procedures used for all kinds of
frailties in the decision. So these were really hard
hitting decisions.
Looking
back historically and seeing all these cycles of civil
liberties encroachments during war time and power
shifting to the executive branch, do you think we
have learned from history and have enough checkpoints
and safeguards in place to prevent such abuses from
occurring again or do you think we will be looking
back 5, 10 15 + years from now and seeing a repeat
of the same problems?
We’ll
I think these mistakes of the past can occur again
‘cause the only the reason they’re not going
to occur if we have a vigorous system of checks and
balances. And if when Congress sees that the executive
branch is abusing its power the Congress will step
in. And I did a book in the year 2000 called Congressional
Abdication on War and Spending and unlike the framers
who thought that each branch would protect its realm,
Congress hasn’t been doing that for some time,
particularly from World War II on. So we don’t
have a legislative check. The courts have been deferring
greatly to presidential judgements in the war power
area. So the structural protections we had, checks
and balances and separation of powers are not functioning
the way people thought that they would. If that’s
so then you have a concentration of power and the
abuse that comes with it. What else can we say about
can it happen again? Just in the area of intelligence
failures, the Church Committee and the Pike Committee
in the 1970s looked into mistakes made by the intelligence
community. And as a result of that intelligence committees
were created in the House and Senate and yet as soon
that was in 1977-78, yet in the 1980s starting in
’83 and ’84 the administration with the
help of the intelligence community got involved in
the Iran Contra affair. That led to the Iran Contra
hearings in ’86 and the report in ’87 as
though nothing had been learned over the previous
decade. And we have the same problem now with the
war in Iraq where you have, you can go in to a web
site of CIA, you can go into www.cia.gov and download
declassified reports. And what you find say on the
weapons of mass destruction report in October 2002,
this was just before Congress was going to vote on
the Iraq resolution, you have a report of 1,900 pages
and the first paragraph says that Iraq has weapons
of mass destruction, chemical and biological weapons.
And if you look at the report the report doesn’t
say that. So someone, we have professionals doing
the report, couching it, putting in qualifications,
conditions and then someone else coming up front,
in the lead paragraph which people will read and saying
something that’s not true. That there was no
evidence that Iraq had at that time chemical and biological
weapons. So we have the same problem again. We have
forty billion dollars set aside every year for the
intelligence community and yet those reports are doctored.
We don’t have the vigorous oversight by Congress,
particularly by the intelligence committees, so we
are reliving the same problems from decade to decade.
Can
you clarify for us what an executive order is and
how it works?
Well
in addition to presidents getting authority from Congress
by statute, presidents from George Washington on up
have used two other vehicles, proclamations or executive
orders. Most of those, I would say 96, 98 percent
are not controversial. They are released, particularly
executive orders, to carry out statutory policy. But
every now and then the administration will issue a
proclamation or executive order that has no statutory
basis, might even be contrary to a statute. And where
the President wants to make law on his own without
Congress. And Congress has various ways to correct
this. They can cut off money so that that no funds
may be used to cut off that executive order or proclamation.
And then executive orders and proclamations are challenged
in the court. So the executive order setting up the
seizure of steel mills by Truman in 1952, that was
struck down by the Supreme Court. So there are checks
but it gives the President an opportunity to take
the lead, take the initiative and see if he is going
to get checked by the other branches.
In
your opinion what are the strengths and the weaknesses
of the ability to issue these kinds of orders and
proclamations?
Well
the strength of issuing these is you take the lead
and you’re home free unless someone is going
to stop you. And it takes usually several years, particularly
in court to reverse an executive order or proclamation.
The down side is that you’re floating out on
your own. You have no other support for what you’re
doing. You’re vulnerable to the charge of usurpation
and abuse of power.
Is
it true that one of Nixon’s executive orders
allowed for domestic surveillance of Americans? And
if so, does this bolster the validity of the concerns
of civil liberties groups that the same kinds of things,
of the Hoover Nixon era might end up repeating themselves,
if not today then maybe a little bit down the line?
Well
one of the concerns of the Nixon years is that the
federal government was using its powers to monitor
groups – student groups and you’d mix FBI
agents agents in a student group. Maybe the agent
might want to give some encouragement to some illegal
action. And you had these people monitored. So this
was reviewed by Congress and by the courts and checks
were placed on this. And one of the agreements was
that there would be a legitimate right for the administration,
for the intelligence community to monitor people outside
the country. But you shouldn’t monitor people
inside the country. There was supposed to be a wall
set up so that the CIA could collect information as
part of the intelligence apparatus, but that information
would not be given to the FBI for prosecution. And
now we’ve seen after 9/11 that as a result of
decisions by the courts that wall no longer appears
and there is language in the USA PATRIOT Act encouraging
surveillance by the administration not just internationally
but domestically. So a lot of concerns we had in the
Nixon years about an administration that was abusing
civil liberties of citizens of the United States will
return.
Taking
aside the civil liberties argument, can you address
the argument put forth by some that suggests that
as a nation these measures have not increased our
national security?
When
President Bush after 9/11 came to Congress for authority
to act against Afghanistan and he received that authority
in the Use of Force Act, I think September 18, he
did what President Clinton never did. Clinton never
came to Congress for any authority. So it was hopeful
that Bush came to Congress for authority and there
was broad national support and international support
for the United States to go to war against Afghanistan
with the terrorist cells and the training camps and
the Taliban and al Qaeda . There was not the same
support for going to war against Iraq. And there’s
been concern that the United States initially got
involved in Afghanistan when the Soviet Union was
there. And we gave support to the Mujihadin. And then
we exited and the Taliban took over. So there was
the understanding after 9/11 that we should not make
the mistake of getting involved in a place like Afghanistan
and leaving it as a vacuum. And yet after Bush got
authority from Congress to go to war against Afghanistan,
instead of completing the job there which is very
very complicated with the borders with Pakistan and
Iran. The Bush administration began the drumbeat to
go to war against Iraq. And ended up making a lot
of comments publicly that were disproven. Bush one
time said that there was a report saying that Saddam
Hussein will have nuclear weapons within six months
and the report would have been done by the international
agency, the Atomic Energy Agency. And the agency said
we never did such a report. It just didn’t even
exist. And there were claims by the Bush administration
that there’s a connection between Iraq and al
Qaeda because Muhammad Atta of 9/11 met in Prague
with an Iraqi intelligence official and the Czech
government says there was never any such meeting.
So again and again comments made to go to war against
Iraq based on statements that were false, not proven,
contradictory. And what it has done instead of being
able to complete a very difficult job in Afghanistan
and make sure that the Taliban do not take back control,
and all they are looking for is another vacuum to
do exactly that. The United States is putting in the
lion’s share of its resources and troops into
Iraq. And although there was no al Qaeda connection
to Iraq before there probably is now because other
countries are going into Iraq over the borders to
give assistance. So we in although we had international
support to go into Afghanistan we're lacking that
same international support in Iraq.
It
seems from what you said that Bush has made some clear
misstatements in regard to Iraq why didn’t anyone
in Congress challenge or question those statements?
Why weren’t those tough questions asked? Is this
symptomatic of a larger movement over the last years
towards failure to question the executive branch?
Well
once President Bush came to Congress and he wanted
the Iraq resolution, the burden was on him to make
the case with evidence that was persuasive. And many
people could look back at the Vietnam years where
President Johnson came to Congress in August 1964.
Said there had been one attack in the Gulf of Tonkin
against a U.S. ship. True. Said there had been a second
one. For all we know today there never was a second
attack. But based on what the President said without
any independent investigation Congress passed the
Gulf of Tonkin Resolution. And many members at the
time thought by supporting the President you could
avoid war. And yet by February or March of ’65
Johnson was escalating the war in Vietnam. So people
knew that history in 2002, when Bush is asking again
based on evidence that was not persuasive, or that
was contradictory, for statutory authority. And in
the end Congress amazingly did exactly the same thing.
They said that by supporting Bush in the statute we
can avoid war. And the report by the House International
Relations Committee says that expressly. So they say
the same thing that was said back in ’64 with
the Gulf of Tonkin. And another factor was the Democrats
seemed to be very concerned that if they didn’t
support Bush they would look weak on national security.
Whereas the Democrats could have, particularly in
the Senate, since they still controlled the Senate
at that time. Could have said interesting case you
make here. The information is not adequate right now.
We want you to go to the UN, have inspectors go to
Iraq see exactly on the ground what the conditions
are. And then after you get us additional information
we will vote on this, but not in October 2002 in the
middle of an election. We don’t want to make
the same mistake we did back in ’64 which was
a presidential election. We don’t want to have
our vote on going to the war colored by partisan considerations.
So the Democrats in the Senate could have made that
argument in October 2002. But instead they decided
to support Bush. I think the votes were 23 against
the resolution. That’s 22 Democrats and one independent.
In
terms of the Constitution, in terms of the system
of checks and balances you often hear the argument
that the pendulum swings back after war, how do you
see the PATRIOT Act as different from other war time
measures throughout our history? Is the PATRIOT Act
better, worse, or the same as what has gone before?
Well
some people argue on this pendulum theory that presidential
power might increase during times of war but then
Congress reasserts itself. That was true from 1789
up to World War II. I think from World War II to the
present time, fifty some years we see a steady increase
in presidential power. Occasionally Congress will
give indications that it’s going to reassert
itself. When it passed the War Powers resolution of
1973 and yet instead of being a reassertion it was
another giveaway ‘cause the War Powers resolution
recognizes that presidents can go to war on their
own without any legislative authority for up to 60
to 90 days. So that was hardly a reassertion by Congress
or hardly keeping faith with the intent of the framers.
So I think what we’ve had is five decades of
continued presidential dominance, less involvement,
often no involvement by the courts and less understanding
by members of Congress on what their legislative prerogatives
are and how the structure of government is meant to
protect individual rights and liberties. That was
all supposed to come out of a rejection of monarchy
an acceptance of small r, republican form of government.
If you ask people today what a republic is I don’t
think that they have any idea that it’s self
government that is trusting in elected officials through
the representative branch in concert with the president
to make policy in a deliberative way not a unilateral
way by the president. So all these values that we’ve
had for a long time have been declining ever since
World War II. And there is very little evidence that
anyone is going to rediscover them.
It seems from what you are describing that we are
in a period of “imperial presidency” to
use Schlesinger’s term.
Yeah
you can either call it an imperial presidency; there
have been many academics who have helped champion
that, including Schlesinger. Or you could say it is
a return to monarchy, which the framers thought that
they had rejected. It’s a return to monarchy
at least in the war powers without any notion of joint
collective judgment and action. So the very values
that made the United States distinctive, separation
of powers and checks and balances, the deliberative
process those are the values that are under attack.
And not too many people either in the media or the
academic community or in public office seem to want
to revisit those and see what the costs will be.
What
could the real consequences be in a shift towards
the kind of return to monarchy? Why should people
care? What are the potential consequences?
Since talking about the constitutional law isn’t
going to touch a lot of people, I talk about something
very down to earth, the Pledge of Allegiance. And
tell them that the flag is not the important thing.
They get offended when I say that, but the flag, we
have a pledge of allegiance and we say, “I pledge
allegiance to the United States of America and to
the republic for which it stands.” The flag represents
a republic, so if we lose the qualities of a republic,
self government and our ability to tell people around
the world that we believe in democracy here. That
we are against autocracy, we we’re losing the
very standard and value that makes the flag meaningful.
If we, if it doesn’t stand for a republic then
the flag doesn’t stand for anything. Or we would
have to change and say we pledge allegiance to the
flag of the United States and to the president for
which it stands. So I think until we can rediscover
the democratic values here, we’re not in any
position to go to Iraq or anywhere else and tell other
nations how they should govern themselves. Or no position
to export democracy if we don’t have it here.
