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May 1, 2009
BILL MOYERS: Welcome to the Journal.

Enhanced interrogation, "harsh" questioning techniques, extraordinary rendition... now we know what they were really talking about — throwing a man against a wall thirty times in a row, depriving a prisoner of sleep for 11 straight days, waterboarding one detainee 183 times — in a word, torture.

With President Obama's release two weeks ago of those memos from the Bush administration's Office of Legal Counsel and the imminent release of photos documenting further mistreatment, a national debate has erupted over what to do with the overwhelming evidence of human rights abuse. The President said, "This is a time for reflection, not retribution."

But we wrestle with a powerful dilemma — shall we move on, as Mr. Obama has suggested, or do we hold a Congressional investigation, appoint an independent commission or a special prosecutor, and put those responsible on trial?

With me are two men who have been thinking and writing a lot about the morality and legality of our actions since 9/11.

Bruce Fein has worked for three Republican Presidents, including as the Associate Deputy Attorney General under Ronald Reagan. He was counsel to Congressman Dick Cheney when Cheney was the ranking House Republican on the committee investigating Iran Contra.

Nearly two years ago he was here on the Journal calling for George Bush's impeachment...

BRUCE FEIN: He's claimed authority to say he can kidnap people, throw them into dungeons abroad, dump them out into Siberia without any political or legal accountability. These are standards that are totally anathema to a democratic society devoted to the rule of law.

BILL MOYERS: Now in private life Bruce Fein is chairman of the American Freedom Agenda, an organization advocating the restoration of constitutional checks and balances. He's also the author of this book: "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."

As a reporter for 25 years, Mark Danner has covered everything from politics to war to human rights, with a special focus on American foreign policy. A long time staff writer for "The New Yorker," he is now a frequent contributor to the "New York Review of Books."

"The Wall Street Journal" says his recent publication of a secret Red Cross report on the treatment of prisoners was key to President Obama's decision to release those memos from the Office of Legal Counsel. Among his many books is this one: "Torture and Truth." He has written new books that will come out this Fall: "Stripping Bare the Body: Politics, Violence, War" and "Voices from the Black Sites."

Welcome to the Journal.

The President had a press conference on Wednesday night in which he was asked two questions about torture. If you'd been there, Mark, what would you have asked him?

MARK DANNER: I would have asked him to get out in front of the country this whole debate about torture. Why it was done. Whether it really protects the country. What we've lost and what we've gained. Because I think the losses have been very, very great.

But until the country is convinced and understands how great the losses have been, and parts with the notion that torture is necessary to protect us, we still are going to be having this continuing debate about torture as a necessity to protect the country, which I think is very harmful.

BRUCE FEIN: I would have asked him, since he's agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there's no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized water boarding, what he has described as torture, is a crime.

Or in the alternative, if he thinks that there are mitigating circumstances, and there's body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn't illegal.

BILL MOYERS: But he is clearly trying to move, as he says, beyond the past. He's closing Guantánamo. He doesn't countenance torture. He says it won't happen on his watch. I mean, shouldn't that settle the issue?

MARK DANNER: This is an issue that, as he has put it, divides the country. But because it divides the country, in my opinion, is one reason we have to confront it. The idea that this is about the past is simply wrong. It's not about the past. It's about our present politics.

You have a political predicate being laid down by the former administration and by some Republicans now in office that essentially says, because these techniques have been stopped, if and when there's a second attack, it will be the fault of the new administration. That President Obama, in deciding not to torture, has left the country vulnerable to another attack. That is present politics. That's not about the past. That's about now. And that's why this has to be confronted, not only legally, because I agree with that. But politically, as well.

BRUCE FEIN: Mark, torture isn't a Republican or Democratic prohibition. We ratified the Convention against Torture in the Senate. We passed it and made it a crime. It's not a Republican or Democratic issue. Moreover, with regard to this idea of well, as long as we got good information, then we can flout the law. That's not how you do it in the United States. I've been around for 41 years. If you think the law is deficient, then we should have repealed the torture statute.

In fact, if it was so important to undertake waterboarding and torture, Cheney should be out there demanding that it be reinstituted. Because he still agrees that we've got Osama Bin Laden and Al Qaeda out there, wanting to plot and kill us.

MARK DANNER: But he is out there demanding it be reinstituted.

BRUCE FEIN: He should be asking, "Repeal the statue."

MARK DANNER: You know, for all factual purposes--

BRUCE FEIN: Not just take my handcuffs off.

MARK DANNER: That's what-- for all practical purposes, that is what Cheney is saying. Cheney is saying that the fact that we're not doing this now, he doesn't say waterboarding in particular, but he says the fact that we're not doing this now is leaving the country vulnerable. That is what he's saying.

BILL MOYERS: Let me play for you what Former Vice President Cheney actually said to Sean Hannity the other day. Take a look.

DICK CHENEY: We had to collect good, first-rate intelligence about what was going on so we could prepare and defend against it. And that's what we did. We -- with the intelligence programs, the terror surveillance program, as well as the interrogation program, we set out to collect that kind of intelligence. It worked. It's been enormously valuable in terms of saving lives, preventing another mass casualty attack against the United States.

MARK DANNER: What's critical about that, I think, is not only that the former Vice President of the United States is saying it. It's that a lot of Americans believe it. You know, the torture discussion, I think involves the law in the way you suggest. I think it involves prosecutions in the way you suggest. I have no problem with that. I agree with that. But the key question here is: if it's simply a legal matter, if it's a matter of recognizing the law was broken and prosecuting people, why wasn't this done in 2004? We have known about this, for five long years now. How it happened, who approved it. More documents are coming out. But in fact, the basic narrative we've known since the summer of 2004. Nothing was done, because as a political matter, the politics of this, until very recently, and arguably still, cut in the other direction. Which is to say, a lot of people believe it, a lot of people think you have to be harsh with terrorists. A lot of people support, either vocally or quietly what the Vice President just said so vividly.

BRUCE FEIN: This is the way I would respond--

MARK DANNER: That's the political problem we have to confront.

BRUCE FEIN: But you cannot separate the political from the legal, the constitutional.

MARK DANNER: Oh, I agree with that.

BRUCE FEIN: The President of the United States, the Attorney General, when I was in office, I took an oath to uphold and defend the Constitution of the United States. Meaning, to enforce it. And there's a way out of that. You can issue pardons. You don't have a right to consult the political forces, say, "I'll just ignore the law."

And in fact, in 2004, we confronted the same problem we had with Nixon. He wasn't going investigate Watergate and the obstruction of himself. That's why I had a special prosecutor, and ultimately an independent counsel. That hasn't been done in this case. But now, the President and the Vice President who authorized this are gone. So, there's no obstacle. If President Obama didn't want to be President and faithfully enforce the laws, he shouldn't be there.

MARK DANNER: You know, let's--

BRUCE FEIN: He should issue a pardon.

But I want to go to the more important issue. This is the whole idea of who we are as a country. If you think the law is handcuffing you, you change the law. The President can't say, "I just flout the law." That's what banana republics and tyrannies do.

MARK DANNER: Can we follow the Watergate parallel just for a second? Because I think this makes my point. Watergate, as some of your viewers will remember, and some won't--

BILL MOYERS: High crimes and misdemeanors.

MARK DANNER: Involved not only high crimes and misdemeanors, involved Judge Sirica. That is, you had prosecutions going on. You also had the Watergate Select Committee, which was a television event, I remember, vividly.

It showed the country what happened, and why what happened was wrong. And in so doing, it laid the political groundwork for political change. And for investigation, true investigation, so that the legal part of it didn't simply seem to be a witch hunt. That's what, to me, that's how torture has to be--

BRUCE FEIN: But that can have-- all--

MARK DANNER: --confronted, on both sides.

BRUCE FEIN: --all Obama has to do is ask for a joint committee or a torture committee and it would happen tomorrow.

We have to confront this issue, whether we're going to live by a rule of law. 'Cause it's the same issue arose, Bill, with regard to the electronic surveillance. "Oh, the FISA statute's handcuffing our ability to gather intelligence. To heck with the law, we'll just go ahead and do it." No, in this country, if we want a republic to exist, you have to change the law. That's the difference between a civilized country, and one that's arbitrary and capricious. That's what we're fighting about.

BILL MOYERS: So, what do you want Obama to do, Bruce?

BRUCE FEIN: If Obama thinks that these people, and he's said, have committed torture, and he doesn't believe it should go forward for political reasons, he needs to pardon them.

BILL MOYERS: Before they're convicted of anything?

BRUCE FEIN: Yes, that's what happened with President Nixon. He wasn't accused of anything. He wasn't indicted. You can issue pardons before there's a formal accusation.

BILL MOYERS: So, therefore-- then what?

BRUCE FEIN: Then at least we do not have a situation where we have set a precedent that lies around like a weapon, that you can violate the law with impunity. Then, at least, at that point, we can have a full investigation. There's no criminal culpability.

BILL MOYERS: You would follow the pardon with an investigation?

BRUCE FEIN: And try to--

BILL MOYERS: Congressional investigation?


BILL MOYERS: Special prosecutor?

BRUCE FEIN: We need Congress to get back and do its work, Bill.

BILL MOYERS: But they're compromised. I mean, four top Members of Congress were briefed on this, back in 2002.


BRUCE FEIN: Then they need to be exposed, the Congress shouldn't be covering up itself.

MARK DANNER: Well, the problem here is, the entire top of the government is implicated in this. It's not just the Bush Administration. Congress was briefed. And it's one of the reasons why Democrats in Congress, some Democrats, are not enthusiastic about a commission.

So, if you define it narrowly in a legal way, to me, that's a dead end. I support prosecutions, but I believe there needs to be a full investigation that will not only tell us, in minute terms, what was done. We now already know a lot about this. But that will educate the country, not only about what was done, but what was lost. And why this is important.

BILL MOYERS: An investigation by Congress, as you say, compromised? Or by an independent commission that's not accountable to Congress or the White House?

MARK DANNER: I would favor, myself, an independent commission, along the lines of 9/11. There are downsides to that. There's no question about it. It would take time. You need to have, obviously, the highest security clearances. They need to look at all information. But they need, above all, to be credible, and authoritative.

You need to be able to speak to the country, and say, "This was a disaster. And this is why." And, you know, there's one other point to be made about the relationship between politics and the law. At the end of the day, it's the politicians who make the law.

Lawyers may not want to recognize that. But in 2006, this is very late, 2006, few years ago, we already knew about Abu Ghraib. We already knew about torture. Congress passed a law called the Military Commissions Act that, part of which, shielded those interrogators who took part in this stuff from prosecution under the War Crimes Act. Now, this was passed in full view of the public, by Congress, Democrats could have filibustered it. They didn't. Why? Because they knew it would be a political risk. And they would be accused of "coddling terrorists."

BILL MOYERS: The other day, Karl Rove was on Fox News, saying you don't want any administration to criminalize policies of the previous administration. Take a look.

KARL ROVE: We're going to turn ourselves into the moral equivalent of a Latin American country run by colonels in mirrored sunglasses, and we're going to do is prosecute systematically the previous administration or threaten prosecutions against the previous administration based on policy differences. Is that what we've come to in this country?

BRUCE FEIN: That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited--


BRUCE FEIN: --under a treaty by the U.S. Senate. It was prohibited in the U.S. Criminal Code. A bill passed by the House and Senate, including Republicans. And this idea that this would be like banana republics. No, we have due process. No one gets convicted without proof beyond a reasonable doubt, right to counsel, opportunity to cross-examine all adverse witnesses, make all the arguments, reasonable reliance on the law, which is a defense. So, this idea of saying that we have a criminal enforcement system that's a banana republic shows his ignorance of how our system works, as opposed to how banana republics work.

BILL MOYERS: I spent the weekend reading the documents that you've published in the "New York Review of Books," from the Red Cross Report. And then I spent the rest of the weekend, reading the four memos that had been released by the government recently. I want to ask you this, I mean, they turned the stomach. But is there anything new in them?

MARK DANNER: I mean, what I think is distinct about the Red Cross report is that it describes, in minute detail, from the detainees themselves, the kind of torture that they were subjected to. In great detail. You know, it's easy to talk about water boarding. And say, "It only takes 30 seconds. It's very easy. It's very effective. It's not cruel, because it breaks people very quickly." You heard this, particularly on Fox News, but elsewhere for years now.

In fact, we find out a couple of things. We find out that it's extremely violent, that it causes extensive vomiting and physical reactions. And those descriptions are very vivid in the Red Cross Report. We find out from the legal documents you're talking about that this was not done once to Abu Zubaydah. This was done 83 times. This was done 183 times to Khalid Shaikh Mohammed, in a month. So, we're talking about six times a day.

BILL MOYERS: These documents that have been released, spell out-- lawyers spelling out specific water temperatures to be used when hosing detainees. The length of time detainees could be denied sleep or put in stress positions. How the head and the neck needed to be supported by a towel, when they were knocking them against the wall. I mean, Mr. Lawyer, what's going on there? Why are lawyers doing this?

BRUCE FEIN: Well, what you see, it's clear that they got marching orders. "We need to do this to save the country. Give us some kind of legal cover."

BILL MOYERS: You think it came from the top?

BRUCE FEIN: Of course, it came from the top. I worked in Office of Legal Counsel.

MARK DANNER: We need to get that document, though.

BRUCE FEIN: I worked in Office of Legal Counsel. Office of Legal Counsel never just out of the sunset said, "Hey, why don't we write a memo saying you can do all these things to save the country." They obviously got a request over from the White House. And we don't even know whether they had already started these enhanced interrogation techniques and then thought after the fact, "Hey, let's get a legal cover."

Which is, apparently, what they did in the illegal surveillance. They started the violations of FISA and then said, "Now, let's concoct some kind of theory that justifies this. And why it looks so slipshod, in terms of its rationale. But one of the recurring refrains in these memos is the cop out of the advice.

We assume that there will be physicians on the scene, where if it becomes torture, they'll stop it. Well, how are they going to know? But they keep saying that we assume that the pain or the mental suffering becomes prolonged, the physicians will say it's too much. And you'll stop. But it also is what you're saying, very antiseptically written. Like, you know, it's like you can read in "1984."

MARK DANNER: If you read the Red Cross Reports closely, as you spent your weekend doing-- I'm sure it was a happy weekend-- there were moments where, in fact, the physicians did stop certain things. One of the detainees, who was subjected to forced standing. That is, his hands were manacled to the ceiling. And he was kept on one foot for days. One foot, because one of his legs he had lost in fighting at Afghanistan.

A doctor finally came in and measured with a tape measure the swelling of his leg, his remaining leg, and decided that this had to be stopped. During the waterboarding, they put a clip on one detainees hand to monitor the oxygen content of his blood, to make sure that they wouldn't kill him. This is the one who is waterboarded 183 times in a month.

So, you had this perverse both legal side of this. You know, the Red Cross Reports and the four memoranda that the Obama Administration released are in a funny way the mirror sides of the same event. You have on the one hand the detainees talking about it, on the other hand, the lawyers describing these things. And it makes haunting-- You know, I'd encourage viewers to just read these.

BILL MOYERS: We will link viewers to our website. But I want to ask you this. You were talking about how these documents got written. The columnist David Broder wrote this weekend, that these memos, and I'm quoting, "represented a deliberate and internally well-debated policy decision made in proper places." What's your take on that? He is saying these were done in-- under the right procedure, in the right way, by the right people.

MARK DANNER: First of all, he is, in a sense, the voice of the Washington establishment. He is telling you, look, this happened within the government. It happened according to channels, et cetera. It's important for a second reason, I think, which is that this stuff was debated at a high level of government. It was talked about.

And there's evidence that, as this interrogation was going on-- that's described in minute terms in the Red Cross Report. As the waterboarding was happening, the sleep deprivation, the forced standing, there was daily, really hourly, contact between those rooms in Afghanistan, Thailand, and elsewhere, in the Black Sites. Daily contact between them and Langley, Virginia. All of these things had to be approved at the acting director-level of the C.I.A. And daily contact between the C.I.A. and the Principals Committee in the White House. George Tenet came over and briefed--

BILL MOYERS: Director of the C.I.A., right.

MARK DANNER: Then the Director of the C.I.A., and briefed the principals, almost on a daily basis on these interrogations. So, you know, they were informed in real time what was going on. Which goes back to the question about prosecutions. You know, again, I don't oppose prosecutions. I think they should come, perhaps not immediately. But they should definitely come. But the question is also, where do you start?

If the President approved it, the Vice President approved it, the Principals Committee, including the Vice President and the Attorney General, by the way, were briefed on it every day. You know, you have the interrogators doing it. You have the top level of the C.I.A. approving it, in writing. You have the Justice Department approving it extensively, minutely, in writing, right down to the level of techniques and whether you can put insects in the black box in which you're stuffing a detainee. You have, from the bottom-most levels of the interrogators, all the way to the President, involvement of the entire U.S. Government.

BILL MOYERS: All right, but let me ask Bruce, who served in the Justice Department, only one of the three of us who did. It is two or three days after 9/11. The President has said to John Ashcroft, the Attorney General, "John, don't let this happen again." And everybody says, "We're in a pressure cooker." The C.I.A. is frantically trying to find out if there're going to be more attacks. And everybody said, "We've got to find out if they're going to attack us again. And the detainees we have here are the ones who can tell us. If anybody knows about the next plot, it's them." What would you have done?

BRUCE FEIN: Well, there are two things that I would think I would have advised the President. Number one, we can get any law repealed, revoked, changed, authorized what you think needs to be done. Congress did that with regards to the authorization to use military force, so you change the law if you think they're restricting. Even-

BILL MOYERS: You go to Congress.

BRUCE FEIN: Yes, go to Congress. And you can do this in secret session. Then Congress would have done anything the President- they would have passed a law saying the world is flat after 9/11, if the President asked for it. The second thing is, even if you thought that there was no time whatsoever. You'd say, "Mr. President, if we do it, as soon as we've done, we need to go to Congress and ask for ratification, after the fact. They've got to ratify what we're doing is legal." We can't just throw the Constitution and shred it. Like we're- now national security, then it trumps the Constitution of the United States.

So, there are ways in which you can approach this kind of crisis. Even defying the law as long as you make certain that you're going to go back, have political ratification. You can explain what you've done, without exposing sources and methods. And if you have to expose sources and methods, in order to have a legitimacy, that's what a republic requires. That's how you can do this.

MARK DANNER: It's clear why they didn't do that. They essentially say that when it comes to wiretapping, when it comes to torture, when it comes to various other things involving the President's power to make war, Congress simply cannot interfere. Therefore, the war- the laws that seem to do that, like FISA, are inherently illegitimate.

BILL MOYERS: President Obama has absolved those who did the torturing. They won't be prosecuted, he said. And Attorney General Holder said the other day, and I'm quoting, "It would be unfair to prosecute dedicated men and women, working to protect America for conduct that was sanctioned in advance by the Justice Department." Is something a crime if the Justice Department has defined it as legal?

BRUCE FEIN: Well, Bill, there's been a longstanding rule in the laws that reasonable reliance upon legal advice is a defense. In fact, it was successfully invoked by Bernard Barker in the Watergate case. He told- "E. Howard Hunt told us, we need to burglarize the psychiatrist's office of Daniel Ellsberg for national security purposes." So, that is already into the law. That's entirely proper.

But the people you go after, you were mentioning, Mark, is at the very top. It's at Bush and the Cheney level. That's why Richard Nixon was under investigation for obstruction of justice. They didn't say, "Just go after Haldeman and Ehrlichman and the Watergate burglars." They went after the President of the United States. That's why he needed a pardon. And that's what should happen here.

The authorization came at the top. It's unfair to suggest these people who are being told by the President, who has access, purportedly, to all the national intelligence and security things in the world. "Do this. It's legal." And then you prosecute them? And the one who actually was responsible gets off scot-free? No, that's not the rule of law.

BILL MOYERS: Is the Obama Administration echoing, in effect, the defense of the German officials, who, at the Nuremberg Trial following World War II, said they were only following orders that had been from policy set by their higher-ups?

MARK DANNER: One of the problems with talking about Nuremberg is that one has to have-- you know, if you order someone to, say, "Look, there's a crowd of people over there. Shoot them. Here's the order." It's reasonable to assume that the person who has been given that order can look at this and say, "Well, that's murder. I shouldn't do it."

You have a case, in the torture debate, that's somewhat different, where you had legal documents that said, "You know what? Torture is defined in this way. In fact, waterboarding doesn't fit under these strictures." Now, we can look at these documents and find them absurd, I do. But they were legal arguments. The C.I.A. demanded them. And this goes back to the Church Commission,

BILL MOYERS: Senator Church investigating--


BILL MOYERS: Right. Right.

MARK DANNER: We're talking about Watergate again, of course, because this was in the aftermath of Watergate. They uncovered all kinds of assassination attempts, C.I.A. wrongdoing. And, in fact, from that point on the President, who before would have basically said, "I didn't know about that." Henceforth, as a result of those hearings, the President had to sign a finding and say, "You know what? Do this. I order you to do this. I'm the President. This is legal."

We have that in this case. And the result is, of course, the C.I.A. was very concerned to get their legal golden shield. That's why we have these documents. The result is that the entire government is implicated. I admire Bruce, because he has the courage of his convictions. He's saying, "Prosecute the President. Prosecute the Vice President."

BRUCE FEIN: Or pardon. No, and I'm not saying that. I'm saying you can pardon him. You can pardon him.

BILL MOYERS: Isn't there the assumption of guilt, if you pardon them?

BRUCE FEIN: Of course, there is. And that prevents it from being a precedent that you can violate the law with impunity. That's why it's important to have a pardon rather than non-prosecution.

MARK DANNER: But if you're going to have a pardon- I mean, I think the pardon is very interesting idea. But if you're going to have a pardon, the only way to do it, it seems to me, is at the end of a long investigation, or at least, a thorough investigation, that shows why they need to be pardoned.

BILL MOYERS: And who should do the investigating?

BRUCE FEIN: It would have to be an independent commission, because as you pointed out, and Mark, the Congress itself is implicated. Congress can't be trusted to investigate itself. Pelosi's not going to investigate herself. Jane Harman's not going to investigate herself. Harry Reid's not going to do that. So, you need an independent commission.

In the past, Bill, we've recruited people off the U.S. Supreme Court to head these kinds of commissions. There's Earl Warren.

BILL MOYERS: Robert Jackson from the Supreme Court over, presided over the Nuremberg Trials.

BRUCE FEIN: Yes, so that- those would be candidate to undertake this kind of commission. But the critical thing is that the commission has to have access, as Mark said, to all classified information. And they have to have authority to declassify it. Because what made the Church Committee successful, to the extent it was, like Watergate had been, it was public. You can have some secret sessions. But it's an educational mission that Mark's talking about, that's got to be done. This can't be done in secrecy.

BILL MOYERS: You know, during the Vietnam War, the United States sponsored, trained, and funded an operation, Operation Phoenix, which approved our allies in South Vietnam, practicing torture. Taking Viet Cong suspects and torturing them. North Vietnamese soldiers, insurgents.

By the C.I.A.'s own account, over 20,000 suspected insurgents were killed or tortured to death with our approval. We have also learned in all these hearings you've been talking about, how the U.S. trained torturers in Central America, let death squads operate in Central America. We now think that there's torture going on by our allies in Iraq.

So, here we are talking about maybe 28 men after 9/11 who were tortured, and talking about three of them who were waterboarded a number of times. Why all the tumult now?

BRUCE FEIN: It's a matter of proximity to the evil. If you're doing it directly, it's different than if you're encouraging somebody else to do it. And one of the things that your question brings out is, as you know, we had the Chief of Staff to Colin Powell, Lawrence Wilkerson testify, just last year, there have been 108 detainees, who died in U.S. custody. And 25, he says, have been found by our own internal investigation to be victims of murder. And we just sort of shrug our shoulders. It shows all-


BRUCE FEIN: Well, why do we do it? It's Alexander Hamilton in "Federalist 8," and I encourage all your readers the read "Federalist 8." It said, at a time of crisis in war, even democracies will yield civil liberties and freedom, because they'll be fearful. And that the leaders have to try to prevent that. And that's what's going on here.

Remember the same phenomenon in World War II. 120,000 Japanese Americans. Got to put them in concentration camps. Even though five months after Pearl Harbor, no evidence of espionage, no evidence of sabotage. They were volunteering out of the concentration camps to go fly, and got the medal for their bravery. And yet, we did it. And it took twenty-some, thirty years later before we said, "This got it wrong." This is happening again. The leaders are there to try to prevent us from succumbing to our basest instincts from fear.

MARK DANNER: There's no question that there have been many times in American history when the United States is attacked, when it responds by breaking its own laws. You could cite the Palmer Raids, Korematsu, as you just did, the McCarthy period. You can cite a number of examples. But you asked why this is different. And I'll tell you what it seems to me is dramatically different. This was made legal, within the American Government. I say "made legal" with quotes. This was officially done. This was ordered by the President. The Department of Justice made memos saying you can do this. The principals, Attorney General, Secretary of Defense, Secretary of State, National Security Advisor, sat in meetings and talked about interrogations that were plainly illegal, according to our laws, and according to treaties we have signed.

All of it is now laid out before the public, and finally, if you look at Fox News, if you look at discussion of this — usually on the conservative side, not always, but usually on the conservative side — you find a strong attempt, basically, to say, "Not only should this stuff have been done, but we should not handcuff ourselves. We should keep doing it." So, we're talking about not simply what happened before. We're talking about the politics of now. And that's why it's important.

BILL MOYERS: Are we in danger of letting this preoccupation with what is over and happened five years ago, distract us from coping with the world?

BRUCE FEIN: No. Indeed, our greatest character as a nation comes from putting rule of law and how we behave towards others as more important than what the GNP is. Once we decide it's more important to prevent a layoff in some place, as opposed to following the rule of law, then we've lost our soul as the United States of America. Then we're the Roman Empire. And that's not what the founding fathers fought for.

Moreover, the Nixon period shows that you can chew gum and walk at the same time. There, you may recall, in the middle of impeachment, we had the Yom Kippur War. We had crisis with the Soviet Union. Putting on high alert, all those sorts of things. The impeachment process went on. You can pass laws, as well. There's no reason why that the focus on prosecution or pardons and confronting this directly disables us from addressing these other issues. And if it does, that's the price you pay for liberty in a republic.

MARK DANNER: And one should add, by the way, that this is vitally important not only because of what happened before, but because of what's going to happen after another attack. And we have to assume there will be another attack. And if the argument that torture is absolutely crucial to protect the country is accepted by the population, then in the wake of another attack, the politics, I think, are very likely to be extremely poisonous.

Blaming the current administration, because it didn't torture, and thus left the country vulnerable. So, we're talking about not simply the Bush Administration. We're talking about who we are, what we do in the world, how we fight this war, and what will happen in the wake of another attack that's very likely to come.

BILL MOYERS: This has been very informative. Bruce Fein, Mark Danner, thank you for joining me on the Journal.

MARK DANNER: Thank you, Bill.

BRUCE FEIN: Thank you, Bill.

BARACK OBAMA: We have rejected the false choice between our security and our ideals by closing the detention center at Guantanamo Bay and banning torture without exception.

BILL MOYERS: As demand grows for the Obama administration and Congress to publish the real story behind the torture of detainees -- and to hold accountable the officials responsible -- so, too, has public pressure been building to hold the banks accountable for their role in the collapse of our financial system.

That's proving difficult, and here's one reason why. Just this week, the number two democratic leader in the Senate made an extraordinary confession. Senator Durbin of Illinois has been battling for bankruptcy reform, but many banks don't want reform, and they're pushing back against meaningful change -- especially change that might help homeowners in danger of foreclosure.

On Monday an exasperated Senator Durbin told an interviewer that although, quote, "We're facing a banking crisis that many of the banks created, the banks are still the most powerful lobby on Capitol Hill, and they frankly own the place."Let me repeat that: one of the Senate's own leaders says the banks own the place. And just yesterday, as if to prove Durbin's point, bankers killed the Senate's latest effort to staunch that wave of foreclosures, squashing a measure Durbin says would help one million seven hundred thousand Americans save their homes.

So what are regular folks to do? Well, some are picking themselves up and fighting back in one of the few forums left to them: the streets.

PROTESTORS: Enough is enough!

BILL MOYERS: Just this week, labor organized demonstrations outside Bank of America offices in more than 75 cities across the country, calling for an end to predatory lending and credit practices and demanding the firing of the bank's chair and CEO, Ken Lewis.

PROTESTORS:Hey, hey! Ho, ho! Ken Lewis has to go!

BILL MOYERS: They got their wish, at least half of it. On Wednesday, Bank of America stockholders fired Ken Lewis as chairman of the board but, in a close vote, kept him on as the bank's CEO.

Meanwhile, many other people struggling to save their homes are fighting and learning the transformative power of taking a stand together. We spent a few days with a community organizer named Steve Meacham. He's with a housing rights organization called City Life/Vida Urbana, in the working class neighborhoods south of Boston, Massachusetts.

ROBERTO VELAZQUEZ: My name is Roberto Velazquez and I'm facing a foreclosure.

ABBEY COOK: My name is Abbey Cook, I'm near the foreclosure, not sure yet but we're in trouble.

UNNAMED MAN: I'm trying to see if I can save my house. [STEVE MEACHAM AT MEETING]: The first meeting of the 1st Bank Tenant Association of Lynn is happening this Sunday. And it's going to be modeled after what you're doing.

STEVE MEACHAM: I work for a community organization called City Life. And I'm a community organizer there. You know, that's become a bit famous of late as a profession, but I've been doing it all my life.

[STEVE MEACHAM AT MEETING]: We have intervened in a key arena, which is stopping evictions after foreclosure and by doing that we are getting leverage to negotiate good deals with the banks.

STEVE MEACHAM: Every 17 minutes somebody is being foreclosed in Massachusetts. Nationally, it's every 13 seconds. There were 1,200 foreclosures in Boston in 2008 and that probably is about 4,000 or 5,000 people. So that's pretty heavy statistics.

MELONIE GRIFFITHS: Foreclosure and eviction are two totally different processes.

STEVE MEACHAM: On our Tuesday night meetings we get our squad of people in here who are residents of foreclosed buildings. We spend about the first half of the meeting with everybody in the room, explaining basic legal rights.

JAMES BROOKS: Can I ask again, how many people need to see lawyers?

STEVE MEACHAM: We have a group of volunteer lawyers who are here each Tuesday night. And they go into the back cubicles of our office and people go out and speak to lawyers independently. So it's a great combination of creative lawyering and community organizing.

LAWYER: You shouldn't feel bad at all about any of this; you're completely legitimate in everything that you're saying. You're telling them exactly what they need, you're not telling them more than that, and if they don't give you that money, you can't leave.

JAMES BROOKS: Can you be evicted for not paying your mortgage? Yes or No?


JAMES BROOKS: Only a judge can evict you. So, if someone offers you cash for keys what do you say to them?


STEVE MEACHAM: A lot of what we do when people are coming in is create the moral space for people to feel like they have the right to resist, because they're told by almost everybody that they don't. You know, their first reaction is, "There's nothing I can do because the bank owns the building now." And that is part of a disempowerment that goes far beyond that situation.

And part of the reason that people love to come here I think is that not only are we giving them solidarity and support in fighting the bank, but in so doing, it's like a, kind of upsetting this whole apple cart of disempowerment that they've been fed for years and years and years.

[STEVE MEACHAM AT MEETING]: When you're done with the attorney, please come back. We have a lot more to do in the meeting, crucial protests coming up.

STEVE MEACHAM: How we got into this mess, this foreclosure mess, I think is a critical thing to talk about because it really affects how we respond. The right wing kind of puts out two scenarios, they say you know people were greedy and they bought more house than they could afford.

UNNAMED WOMAN: So Sovereign Bank sent me this letter and I'm just trying to figure out...

STEVE MEACHAM: And that's simply not true. People weren't greedy. The people who are in our room were buying any old house in a working-class neighborhood and they were being told by everybody that they should. Even if prices are high, you have to buy now because they will only go up. That's what everybody was saying.

And second, even though they could see they couldn't afford that monthly, they were being told by the bank that they would be refinanced. And they say, "Why the heck would the bank lend me money they don't think I can afford?" Nobody thought that the banks would lend money they didn't think you could afford. And yet that's exactly what they were doing.

STEVE MEACHAM: Well Dorchester is kind of the epicenter of foreclosure crisis in Boston. You know, there's maybe as many as half of all the foreclosure deeds in Boston are filed in Dorchester.

I think at one point a single family house in Dorchester was probably going for $350,000 to $400,000 like, in 2005 and -6 at the height of the real estate bubble. And now those same properties are worth probably less than $200,000-- half that mortgage value or less. And that is the crisis in a nutshell right there.

STEVE MEACHAM: One of the unheralded things about this crisis right now is that there's an awful lot of owners who come to us who cannot afford their home at the inflated value, at the adjustable rate mortgage price. But they have plenty of income to afford their home at the real value at a 30-year fixed. And so why not just give them the property back at that amount? If they're foreclosed on, the best the bank that can do is sell the property at the real value. By definition, that is the absolute best.

If Deutsche Bank forecloses on Joe Schmoe the best they can do is to sell that property at real value. So if Joe Schmoe can afford the property at real value, why not sell it back to him? But the only reason the banks aren't doing that is because of what they call moral hazard. They say basically that homeowners should be punished because they signed these loan documents.

These are the same guys who have run our entire economy into the ground and who have been rewarded with billions in taxpayer bailouts and have used billions of that money to give bonuses to the very executives that drove their companies and the whole economy into the ground. And they are citing moral hazard as the reason why they can't resell that property to the existing homeowners at the real value. That is disgusting and hypocritical and in the extreme.

MELONIE GRIFFITHS:I kind of feel like you might want to have somebody look at your debt to income ratio too just to make sure you're in a comfortable loan, because something doesn't sound right. Especially if just losing a small part time portion of your income causes you to not even be able to make those payments.

MELONIE GRIFFITHS: I heard about City Life when I knew I was kind of falling behind on my mortgage and I was coming close to foreclosure. And my, you know, there was no help.

MELONIE GRIFFITHS:Okay? Alright, thanks, Ada.

MELONIE GRIFFITHS: When you come here, you automatically get connected. It was the only place I came. I was kind of looked down upon everywhere else I went. So I automatically felt a connection.

STEVE MEACHAM: I think people do come to their first meeting because they have a specific problem, they want to address it. People keep coming over time, and a lot of people come even after their problem is solved because they found something profound here. They found a community that works in a way that probably few other communities that they're involved in work. They found a community of struggle I guess you would say, where people are involved in dealing with opponents that they didn't really think they could deal with. And they built up a lot of camaraderie in the process of fighting those opponents.

[STEVE MEACHAM AT MEETING]: You know, this is all Dorchester basically here and Jamaica Plain, and Roxbury.

MELONIE GRIFFITHS: One of the things I loved about when I came to City Life and what kept me here. Was that they didn't really do for me, they helped me. They would direct me, but they never once did it for me and I liked that.

STEVE MEACHAM: You can fight it, you know. Somebody might want to give them a call from here whose not you.

MELONIE GRIFFITHS:Yeah. I know. I just want to be fighting all the time...

MELONIE GRIFFITHS: It's empowering. And I think that's what we do for our members. And it's kind of-- it empowers them to then take on a leadership role. Although I work for City Life, I have people in the group that are just as involved, just as committed and dedicated to this work and I think it's because of the approach that City Life takes.

[STEVE MEACHAM AT MEETING]: I'll look it over. I'll make some suggestions probably; we'll get to a final one. You sign it, I'll send it and fax it over to the lawyer.

STEVE MEACHAM: People who come to us generally don't get evicted. People who get into the room, who are a part of our organization, who get the legal help that's in the room, don't get evicted at a rate of maybe 95 percent they don't get evicted.

Exactly the opposite is true for people who don't get to us. They get evicted almost 100 percent. So, therefore, that dramatic difference means we got to get people here. And we do that through regular mass canvasses.

MELONIE GRIFFITHS:So is there anybody who wants to take part of Dorchester?

STEVE MEACHAM: We have a bunch of volunteers who come to the office here. And they visit foreclosed buildings and leave fliers and talk to people, and tell them don't move.

MELONIE GRIFFITHS:The last canvass we did one lady, she yelled at me, went crazy on me, and she called me two weeks later. So you know, these are really- and all I said to her was, "Okay, I'm sorry I'm just going to leave this..." and she was like "Get off my door!" and I was like "I'm just going to leave this bag." And she called me two weeks later to apologize and ask for help, and we've been able to help her, so...

LAUREN WOLINSKY: And they have meetings on Tuesdays that you can attend and they have a translator that comes and translates into Spanish the entire meeting.

STEVE MEACHAM: The basic message is: "Just because you're living in a foreclosed building doesn't mean you have to leave. Know your rights."

DEBORAH MASON: I'm thankful somebody left one of these on my door because I was panicking and trying to get ready to look for a place. And just didn't know what to do.

STEVE MEACHAM: And so through this mass canvassing that's going on constantly, that's how people find us and they come to the meeting. And once they get here, they don't get evicted.

I've been a community organizer or an organizer, in one way or another for... since 1972. So that's a long time now. That's 37 years. After some initial period when I was doing community organizing in Cambridge actually, I went to work in Quincy Shipyard as a welder. And the shipyard was both a grand place to work and a hellhole of a place to work.

You know, it was grand in the sense of 6,000 people working in common labor to produce this gigantic product, you know, a 1,000-foot long boat. Cranes would be going back and forth in the dark and whistles going off. It was quite a sight, it was a grand thing.

On the other hand, the corporation that owned it, General Dynamics was an awful company to work for. And they would make you, you know, get your time cards signed to go to the bathroom, and then you had to get it signed again when you came back so they could tell exactly how many minutes it took you to be down in the john. And, you know, they wouldn't let you go into a warm shack to have your coffee at break time because, you know, they thought you might spend too many minutes in there or something like that. And so, it was just a miserable place to work in terms of the heat and the cold and the weather and everything else. And constant exposure to noxious chemicals and you know... There was one, I have a million stories, but there was one time that they started painting all the barges before we welded them, and they painted them with an epoxy paint and when you welded on them it turned into cyanide gas. And we actually had to wage a struggle so that we wouldn't be breathing cyanide.

So there was all these struggles going on there that, it made class in this country crystal clear. To the degree that class had been a kind of an understanding I had from thinking about it or reading about it or things I had experienced as a young person, as a child, now was something extremely visceral, you know. That moved it from my head to my gut. And it greatly influenced my subsequent organizing around housing.

STEVE MEACHAM: These are all protest signs. We have a million of them, so I've got to pick out the ones that are useful for the Bank of America protest.

STEVE MEACHAM: We have a strategy at City Life that we describe at each bank tenant meeting that we call The Sword and The Shield, La Espada and El Escudo. The Shield is the legal defense and The Sword is a public relations, public protest offense. And we find that the two work extremely well in combination.

STEVE MEACHAM: This is our Bank of America puppet, who doubles as our Deustche Bank puppet, and several other greedy people. But we have this sign that hangs on his teeth, that says ‘Bank of America' and on the other side that says ‘I want your bailout and your homes.'

STEVE MEACHAM: A legal defense is not enough because in Massachusetts the banks can evict you for no reason. And so for many people the strongest legal defense will simply slow the bank down. Slowing the bank down, however, can be very, very important because it gives us a chance to use the public protest to good benefit.

STEVE MEACHAM: Hey, hey, ho, ho, greedy banks have got to go.

We're here in front of Bank of America because we are demanding that the bank take the rent of people who live in foreclosed buildings instead of evicting them. We're demanding that Bank of America sell those properties at real value to the occupants instead of evicting them. We're here demanding that we want to give money to the bank. And the bank won't take it. Instead they want to evict us.

STEVE MEACHAM: So if the bank is facing the prospect of a long, drawn-out legal procedure, even one that they might ultimately win, that is both time consuming and expensive.

STEVE MEACHAM: Banks get bailed out!

CROWD: People get thrown out!

STEVE MEACHAM: Banks get bailed out!

CROWD: People get thrown out!

STEVE MEACHAM: And if, at the same time they're going through that, they're being regularly protested by City Life or they have public officials calling them, asking them, why a bank that just got taxpayers' bailout money should be evicting people who are willing to pay rent, that is a public relations battle the bank loses every time. So faced with that combination of long, drawn-out legal defense and public protest, the banks are very often choosing to negotiate and settle with us.

CROWD: No foreclosures! No eviction! No foreclosures! No eviction!

STEVE MEACHAM: City Life, if it's known for anything, it's known for demonstrations. And we do a lot of them. The most famous of recent times are eviction blockades that are right in front of somebody's house being evicted.

STEVE MEACHAM: Today we are witnessing a courageous woman taking a stand based on principle!

STEVE MEACHAM: And the point of that is pretty clear. We're trying to stop the bank from coming through our lines to evict the family. One reason we do the blockades is because they get a lot of publicity. If 50 or 75 people come and sit in front of a building and they're folks willing to be arrested, that is dramatic and it gets a lot of publicity.

CROWD: Shame, shame, shame.

STEVE MEACHAM: I think organizing is a lot about morality. A lot of ways in which people are oppressed is presented to them as normal. They may really get the fuzzy end of the lollipop, but it's presented to them as just normal. It's just, you know, I've had a big real estate corporation representative say to me, as they're evicting everybody, "Nothing personal, it's just the market."

And so a lot of our job is to say, is to apply a moral lens to this thing that you're not supposed to apply a moral lens to, which is the market. So that if you're evicting people in order to make profit and it's just extra profit, you don't need that money to run your building, then it is appropriate to say that's immoral. Or if you're a bank evicting people for no reason and you're going to cause untold suffering all over the city and the state and the country just because you don't think you want to be a landlord, that's immoral. And people have to bear the moral responsibility of their actions even if they're doing it through the market. And so bringing the moral lens to that stuff really helps our people and helps us organize the resistance.

As part of The Shield and The Sword method there is also a legislative part to our program.

STEVE MEACHAM: Well we're on this tour bus today with legislative aides and with press people to give people an understanding of what the foreclosure crisis is like in a hard hit neighborhood in Boston, the Four Corners neighborhood of Dorchester. A lot of the legislative aides that have come on the bus are sponsors or supporters of key legislation that Massachusetts Alliance Against Predatory Lending is sponsoring and so this tour is very important in terms of showing the real need for that legislation and showing the need for resistance.

STEVE MEACHAM: This is really criminal what's going on so it seems appropriate to put up on the building that this is a ‘White Collar Crime Scene'. You know, this is a crime scene, a white collar crime scene. We're going to put it right here on the porch.

PRIEST: Right now in my rectory, I have two people staying in my living room because they're homeless. They've lost their house and they have no place to go. This is the problem we have.

UNNAMED WOMAN: We need to have our neighbors to be able to stay in their homes and to be able to live here and to keep it the thriving community that we've worked so hard to bring it to be.

STEVE MEACHAM: When a person comes to their first rally it is a very scary thing to kind of raise your voice in a public setting like that. And when you do it and you kind of overcome that and join in the chants or lead the chants or speak at a rally.

UNNAMED MAN: And it was to fight foreclosure and we were able to stop five times, I told them I'm not giving up.

STEVE MEACHAM: It's very transformative. People find their voice that way. And I've seen it happen a lot of times that people in moments of struggle become different people and they become better people.

MELONIE GRIFFITHS:It seems like just yesterday that we stood in front of my property, almost in the same way, a lot of the same people, defending the same cause.

MELONIE GRIFFITHS: I don't know where that strength came from to do what I did. When I think back, like, the me that I know would've just moved out. I always say to people, I'm like, "Foreclosure was kind of like one of the best things that happened to me." And they're like, "Huh?" Like, but so much good came from it. I was able to help so many other people. I learned so much good information that if I'd had before, you know, but I can just turn it onto other people and help them not make the same mistake. And I kind of feel like it gave me my calling. It kind of put me where I needed to be.

REGGIE: I'm a working American. I work 60 hours a week sometimes. I have the money to pay the rent. The realty company won't take the rent payment. I thank God for the struggle and the unity of the people that are out here trying to fight this fight on behalf of the whole community.

STEVE MEACHAM:We will not let Reggie and his family be evicted, will we?


STEVE MEACHAM: I think that the process by which people, number one, go from feeling like victims to being activists on their own behalf. And then they take a step beyond that and they become activists on other people's behalf, other people that were in the same situation they were in.

LOCAL TV REPORTER: Just a last question, what's it doing to the neighborhood? Just real briefly, what kind of an effect?

STEVE MEACHAM: And then they become activists on other issues besides housing. And pretty soon they're trying to change the system. And the process by which people go through all those stages is a vital part of community organizing. It's not only a ‘community organizing' way of being, and not only builds organization, that it does. But if empathy is somehow the quintessential human emotion, the quintessential thing that makes us human, then solidarity is its expression.

[STEVE MEACHAM AT MEETING]: We close each meeting with a solidarity clap so if you wouldn't mind standing up.

STEVE MEACHAM: And I think that that experience of solidarity is something that feels so good that people come back just for that.

[STEVE MEACHAM AT MEETING]: We're going to beat back bank attack! We're going to beat back bank attack! We're going to beat back that bank attack! We're going to beat back that bank attack..."

BILL MOYERS: That's it for the Journal.

Log onto our website at for more about the foreclosure crisis and to find community organizers in your area. there's also a complete guide to our coverage of banks and the bailout and a history of the controversy surrounding the torture of terrorist suspects.

My conversation with Bruce Fein and Mark Danner continues online, log onto the Moyers website at, search "Moyers" and click on Bill Moyers Journal.

I'm Bill Moyers. See you next time.

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