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May 1, 2009
BILL MOYERS: My conversation with Bruce Fein and Mark Danner continues...

So that we leave the jury, my audience, with a clear statement of your position, I will give you, very briefly, the opportunity to say what is the next step you would like to see happen.

BRUCE FEIN: I would like President Obama to decide either to open criminal investigations of Bush and Cheney at the highest level or issue pardons. And second thing that he should do, he should call for Congress to create an independent commission with full access to all classified information, authority to declassify, and we have public hearings, where necessary, for sources and methods they can be in executive session, to make sure the educational process goes along with the enforcement process. That's what he ought to do.

MARK DANNER: I agree that the President should join with the Congress to establish a blue ribbon commission led by people of respect in the country to delve into this very deeply. What was done. How was it done. Who was responsible. What information was gained. How did it help? How did it hurt the country? And to tell the people what they find. And I think prosecutions should go on. They should be probably the province of the Department of Justice, perhaps a special prosecutor. But I think, in my opinion, what is most important, is dealing with this politically, delving into it, and showing the people what exactly happened. And prosecutions, if and when they come should be part of that process.

BRUCE FEIN: Mark, if these guys thought it was constitutional, they could say, "I'm flouting FISA, it can't control me. I'm flouting the torture statute. Politically, if you don't like it, then be against me. Change the law or whatever."

MARK DANNER: I agree with you.

BRUCE FEIN: And if they thought, Bill, we need to torture. They should get -- we have to repeal the torture statute. We can do that. You can revoke treaties. We did the ABM Treaty. We revoked that. You need to do it the legal way.

MARK DANNER: Bruce, let me ask you something, which we should probably have asked during this discussion. I agree entirely with what you just said. I have no problem with it whatever. My question to you would be, why didn't they do that?

BRUCE FEIN: Because they didn't really believe what they were saying was true. They knew they would get lacerated in the Supreme Court or otherwise if they said, "the FISA statute's unconstitutional." Because when push came to shove-

MARK DANNER: But no, you said Congress-- You said they should ask Congress to change the law.

BRUCE FEIN: Oh, why didn't they--

MARK DANNER: And agree with you. That Congress, probably, in the wake of 9/11--

BRUCE FEIN: Oh, yeah, they would--

MARK DANNER: --they would have done it. So, why didn't they do it?

BRUCE FEIN: Because precisely--

BILL MOYERS: I've been in the White House. And I think you -- we should always put on the constitutional breaks -- but I've been there, and I think the lawyers may have thought the way you thought. But I'm quite sure the President and the Vice President and the staff around them were saying, "It could happen again guys. They could be on their way. We've got to stop it." Don't you think?

MARK DANNER: But the question of FISA-- the question of FISA is--

BILL MOYERS: Excuse me one minute. You don't have time -- you should -- but to go to Congress and say...

BRUCE FEIN: But what you do is this, Bill. You just say, "Okay, if we can't do it instantly, we seek ratification, after the fact. We start it now, and then we go to Congress and say, 'Now ratify what we've done as being legal.'"

MARK DANNER: And the idea that they didn't have time, they did the authorization for the use of military force. They could have-- they had a willing Congress that probably would have changed it. And I think this is a very interesting question.

BRUCE FEIN: The Patriot Act, too.

MARK DANNER: You know, to me, the answer to the question of why they didn't do what Bruce is saying. And I agree, they should have done it. You don't believe these laws should be followed, you know, change them. And they had a willing Congress to do. Why didn't they? They didn't because the fundamental way, they didn't recognize the legitimacy of these laws. They thought that the President should circumvent them. And basically show, "Look, the President doesn't need to follow these laws, because they're illegitimate."

BILL MOYERS: I think--

MARK DANNER: They interfere with his war making power.

BRUCE FEIN: But Mark, if they--

MARK DANNER: There's a public record--

BRUCE FEIN: But if they believed that, Mark, they would come out in publicly, and say, "We're not going to follow the law. We think it's unconstitutional. We're not going to follow the torture law. We think it's unconstitutional." And take the political leap. They kept it secret.

MARK DANNER: The documents that we're talking about essentially say that. They say that if you read the torture documents--

BRUCE FEIN: But they keep it secret.

MARK DANNER: If you read the torture documents closely. They make a couple of arguments. One is that this isn't torture. That's the one that's gotten all the press. But the other one is that the President can't be limited in this anyway.


MARK DANNER: The Pre-- but it's in the document. This is not simply John Yoo.

BRUCE FEIN: No, but Mark, they didn't go public, and say, "We're telling you that we don't believe this is constitutional. We're not going to-- we're not going to comply with the law, because we think it's a void law." They didn't do that. Never.

MARK DANNER: I think they should have.

BRUCE FEIN: They kept it secret.

MARK DANNER: I think they should have gone public.

BRUCE FEIN: Yes, in that note. But that's the difference between a system that's working correctly, Bill. You don't hide things. The people can decide. And if they ratify it, and Congress authorizes it, say, "We don't want the law to be enforced." That's one thing. We don't-- this is the earmark of a tyranny. It's: "Hell with the law. We just do it on our own and in secret." That isn't the United States.

MARK DANNER: On that we can agree entirely. I agree with you completely. That it's the mark of a tyranny--

BILL MOYERS: Proscribed by elections.

MARK DANNER: --enormously threatened—

BRUCE FEIN: They are a tyranny by election. Elected tyranny.

MARK DANNER: Tyrannies can have elections.

BRUCE FEIN: Yeah. The emperors in Rome got elected, too.

MARK DANNER: You had-- tyrannies have a lot of experience with that. I'm not calling the U.S. a tyranny. But I'm saying, I agree, when you say that's the mark of a tyranny, you're completely correct. They did it secretly. But I think there are reasons, you know, there are reasons having to do with their attitude toward presidential power, which is why they didn't do what you're suggesting. Coming out and denouncing it. And I think that they should have done that.

BILL MOYERS: Anybody who expected there would be a diminution in the use and appropriation of executive power if Obama became President has to be disillusioned now.

BRUCE FEIN: Oh, yeah, absolutely-

BILL MOYERS: Because-- because he has expanded the powers of the Presidency in almost every direction, right?

BRUCE FEIN: Exactly.

MARK DANNER: But I-- you know, but I think it is important to point out here that his first full day in office, he sat down. He renounced these techniques. He closed the black sites. He closed, or declared he was going to close within a year, Guantanamo. These are real things. He did those things. And he should be given credit for those. I think I happen to be rather optimistic, despite the foot dragging on this stuff. That eventually, the commission that we both agree on, by the way. We agree, as you point out, we're arguing about tiny things.

I think that a commission will eventually be established. Because I think there's a political impulsion behind it. Maybe I will be wrong about that. I think it will lead that way. And I understand his reluctance to do this. I understand Congress's reluctance to do it. But I think at the end of the day they're going to be forced into it.

BRUCE FEIN: But Mark, let me just identify. These are the ways in which Obama has gone beyond Bush Cheney. Out in the FISA cases, he's argued not only state secrets, he says the Federal Government is absolutely immune. You can't even sue the federal government for violating the FISA. An argument that Cheney and Bush didn't even make.

The other thing with regards to the detainees. Two things. He said that we can avoid the Habeas Corpus, sending the prisoners to Bagram. There's no coverage, no -- law doesn't apply there. Secondly, he's just said, "I won't call them enemy combatants." But he's made the same arguments. I've been involved in the Wiegard cases. If you know, they're the seventeen--

MARK DANNER: Yeah, they're horrible.

BRUCE FEIN: --Muslims, okay? He hasn't-- even though he continues to concede, they never were illegal combatants, he still has them detained. But he's just said, "Now, I won't call you an enemy combatant. We'll call you something else."

BILL MOYERS: So, he's obviously giving the law the legal advice from his Justice Department, right?

BRUCE FEIN: Yeah, good. The same echo chamber of what Bush and Cheney got. Because this is the psychology of Empire. This book that I'm about ready to complete. It's the psychology of empire, Bill. Hey--

BILL MOYERS: How do you mean?

BRUCE FEIN: --"We're the United States."

BILL MOYERS: What do you mean the psychology of Empire?

BRUCE FEIN: The psychology of Empire's one that magnifies threats a million fold. Beyond what the real danger is to the United States. Because there's a compulsion, a psychic thrill, that comes from just being dominant, and not being controlled by anything. Once a country thinks it can live risk free, then it finds the tiniest kind of threat intolerable. And they will flout any law, send the military anywhere, to try to crush it.

They're like-- we're treating Pakistan like they're the next Soviet Red Army with three million people and ICBMs to come across the globe. And one of the things that I think needs to be fleshed out, if you can do it. Is the use of the-- now we're doing the drones. How does the C.I.A. target these people and kill them? How do they know they're getting the right people? And they're-- this antiseptic.

BILL MOYERS: They don't. They don't.

BRUCE FEIN: These are assassination squad. This is the equivalent of assassination squads by technology. They don't have any idea whether they're killing civilians or not. And we just say, "Okay, so what? We're the United States. It doesn't matter whether you're a little speck out there. If you-- if we think you might endanger us from 5,000 miles away, we can kill you."

BILL MOYERS: As a reporter of 25 years, did you think you were covering an empire?

MARK DANNER: Yes, I did. And there's no question, the United States-- what I've written about is the Athenian problem. It has the Athenian problem. That is, can you remain a democracy at home, while maintaining an empire abroad. And for many years, the point of that contradiction was in the C.I.A. statute. It will do this. It will do that. And it will do what other things-- other things the President from time to time might direct.


MARK DANNER: This is the great loophole--

BRUCE FEIN: The covert act.

MARK DANNER: -- the C.I.A. used to--

BRUCE FEIN: Called the Mosaddeq loophole.

MARK DANNER: The President-- exactly, Mosaddeq. It's how you did assassinations. Now, the Church Committee basically closed that loophole. And put us where we are now. Which is, we have documents that say, "Okay, you want to make things legal? We're gonna show that torture is legal." This is-- comes originally from that loophole. And that C.I.A. loophole is really the heart of the empire. It says that Presidential power, which should be circumscribed in our system, as Bruce says, and as I completely agree. In fact, can be expanded infinitely.

Why? Because in the Cold War. In the nation that the United States has become. This world-straddling empire. The President has to be able to order these things. Has to be able to circumvent the law. And in a sense, we are right where that loophole, in 1947, was going to leave us.

BILL MOYERS: But gentlemen, small nations torture. North Korea. Eastern Europe. Small nations. Which have no presumptions of empire. You know, it reminds me of the photographer in Tom Stoppard. Who says, "People do awful things to other people. But it's worse when it's done in the dark." Isn't-- aren't you talking about the darkness here?

BRUCE FEIN: But it's not only that Bill. I say, if we purport to continue to have a rule of law and a republic, we have to confront these things openly. Repeal the torture statute. And see whether-- will you-- will that withstand scrutiny? Are we gonna openly say, "Yes, we're torture. We're like the North Koreans. That's, it's-- it's different. It does make an enormous amount of difference whether you just try to-- close your eyes to what you have to confront or morally say, "I want to cross that Rubicon, I'm gonna do that."

I don't think the American people would say, "We don't want the torture statute. We want to revoke the-- the convention against torture. But if it happens, it happens. But at least it's done in the proper way. We the people remain sovereign. We know what we're doing. The secrecy is the most horrible thing there is. It means: "hey, we don't control our own destiny. We should have known-- Bill, you and me, should have been able to know what was happening, so we could register our political loyalties. "No, Mr. President, I'm gonna march-- I'm gonna vote against you, if I see that's going on." We didn't know what's going on.

MARK DANNER: You know, let me say that that's an interesting argument. I agree with that. I agree with the openness argument. But it brings us to another point. Which is back to the political discussion I've been trying to have here. Which is that the American People, largely, up until very recently, in the judgment of our politicians, essentially supported this stuff. President Bush, you know, introduced the Military Commissions Act in the fall of 2006. It was no secret that he did it partly for this reason: because the midterm elections were coming up.

He wanted the Democrats to oppose it. So, he could then accuse them of coddling terrorists. So, they would lose the midterm elections. The Democrats very cleverly said, "No, no, no. We won't oppose it. We'll let it go through and become law." And they in fact won the midterm elections. That's the dirty little secret of this debate. And while I agree with you entirely about openness, that leaves us to confront a basic question here. Which is, "Why do many Americans, many, not all, by any means, but many. Why do they and have they been willing to support the use of torture? Why does the national imagination embrace the so-called Jack Bauer ticking bomb scenario?" That is--

BILL MOYERS: Jack Bauer of--

MARK DANNER: Jack Bauer of the Fox program 24. Which came on the air, by the way, a couple of months after 9/11. And which envisions, until recently, in each episode, some kind of huge threat. A nuclear weapon hidden in a city or so on. And then torturing-- the only thing you can do is torture the guy who's the single person who you know knows where the weapon is.

And Jack Bauer tortures him, and saves the day. This happens repeatedly. And this is part of the American imagination, the comforting idea of untrammeled power. That there are people out there willing to do absolutely anything, even break the law, to keep us safe. You know, we can go back to Dirty Harry. Clint Eastwood movie of 1971. And cowboy movies. This idea that the law, on the one hand, is what makes America great. But on the other hand, it ties our hands. And there have to be strong people, strong men, willing to break those laws to keep the country safe.

BRUCE FEIN: We don't have that dilemma. That's why we have a pardon power bill. That's why we have a pardon power. If they're extenuating circumstances, the law can-- endow as the president, okay, we excuse you. It doesn't mean that it was legal.

MARK DANNER: But this is not--

BRUCE FEIN: And that makes all the difference in the world.

More over, in my view is it's up to leaders to change the customary sans-culottes succumbing to fear. What Hamilton described in Federalist 8.


BRUCE FEIN: And the leaders have to say, "Hey, we gotta accept risk. It-- even if happens on my watch, I will accept the political penalty. If we're gonna remain free, we have to accept some risk. We're not gonna stoop to torture. We're not gonna rape women in order to get their husbands to confess. Because we would destroy the whole purpose of our country if we did that." Leaders have to change the psychology that you identified that's supporting the torture. And they aren't doing it. They are serving as human weather vanes, not-- not--

MARK DANNER: But I agree with that entirely. Which is why one reason you and I--

BILL MOYERS: Stop agreeing so much. If you start-- if you keep on agreeing you're never gonna have a good conversation.

MARK DANNER: But the general point you're making is the reason why we both agree about a commission. That-- and this is partly about changing the psychology of the country through education and exposure of what happens. I also agree that, you know, President Obama is well equipped to stand up there and say, "You know what? Not only do we not have to give up liberty in pursuit of our security," which he said very eloquent in his inauguration. "But the consequence of that is we have to take on some degree of risk." If we wanted to search everyone on the street every day we could prevent crime. Well, we allow a little bit of crime because we don't want to do that.

BRUCE FEIN: Even murder.

MARK DANNER: Even murder. And--

BRUCE FEIN: Even Timothy McVeigh.

MARK DANNER: Therefore we have to be willing to have our liberties, to have the country that we have. To realize that we're going to have more risk that might have existed, say, in the old Soviet Union. And he has to say that.

BRUCE FEIN: Yeah. Yeah. Yeah.

BILL MOYERS: Some people are not leaving it to the leaders. This very day there are protesters outside the White House calling for a commission to investigate what you two have been talking about. Well, finally, Mr. Gibbon, why don't you call your book The Decline and Fall of the American Empire?

BRUCE FEIN: No, that is-- I'm flirting with that as my title. I don't know exactly what I want to say. Because the titles are everything. You don't know-- you want people to read it. I'm thinking of making America-- see, I say you become stronger when you've renounced these things.

If you understand what the purpose of your country is. See where we've gone wrong, and the psychology of empire's transforming the idea of the purpose of the United States is to dominate all the world. As opposed to Quincy Adams, 'no, we'll have an influence abroad based on our example.'

We want them to follow our example. But, no, we don't go abroad in search of monsters to destroy. And that's the whole difference. There's, in some sense, Bill, there can be a difference in the whole idea of what's the United States is about. Which then dictates then what you do. My view is the United States is about securing the blessings of liberty to ourselves and our posterity.

And insofar as that service is a model for others to emulate, fine. But, after all, no. We aren't responsible for the freedom in Zimbabwe. If it doesn't happen, we want to be there. Because the process of trying to export our democracy abroad through military force is going to destroy our own democracy at home.

And that's what Madison understood. He said, "We will kill a republic when we try to magnify foreign dangers or go abroad." And that's-- and-- the-- other people would think, no, the purpose of the United States is to go to every square inch in the planet and bring them what our conception of liberty is.

MARK DANNER: In a sense really, we're coping with the backwash of the Cold War. The Cold War made the United States really an empire. And some people, I was one of them, thought that, after the Cold War ended, we would, to some degree, come home. The Clinton years, the 90s, were an interesting experiment in that. We had the Bosnian genocide. We had the Rwandan genocide. And many of my friends, who surprised me by supporting--

BRUCE FEIN: Serbia and Kosovo.

MARK DANNER: --by supporting the Iraq War. Friends of mine were really looking back at those genocides and saying, "Gosh, America needs to stand for something more." ironically enough. It has to prevent this kind of thing. And many of them were, essentially, convinced by President Bush's arguments that we have to go in and remove the dictators.

America should do that. I thought they were profoundly wrong. And I agree that the United States, in so far it becomes a power that intervenes around the world, and fights wars of choice, becomes something wholly other than what the founders imagined it to be.

And torture, in a sense -- which is where we began this discussion -- shows that we have become something different. Those documents to me, when I read them, after 25 years of writing about human rights stuff, shocked me still. Even though, as you point out, we knew what had happened, they shocked me. They shocked me that, in the Department of Justice, they were writing about insects put into little boxes and water boarding. And the degree to which you can keep people standing. And how you beat them. And I thought this is, you know, what would Madison think about this?

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