September 7, 2007

BILL MOYERS: Welcome to THE JOURNAL. Congress is back in session this week and back to the very important debate over how much power the president should have for domestic spying. Once upon a time, the Foreign Intelligence Surveillance Act, or FISA, required officials to get a court warrant before they could wiretap suspected enemies inside the U.S.A. The idea was to go after the bad guys while protecting everyone else's private lives from peeping government Toms.

What Congress did in a hurry last month was to give the government broad new powers to listen in on private communications here at home, including phone calls and e-mails to and from the country, to tap into foreign intelligence. And to do so, without court orders.

SEN. JOE LIEBERMAN (I-CT): We have a crisis. We are at war. The enemy is plotting to attack us. This proposal will allow us to gather intelligence information on that enemy we otherwise would not gather.

TRENT FRANKS (R-AZ): Al Qaeda will not rest when this body adjourns for the August recess. If we do not address the critical loopholes in our foreign intelligence system tonight, our children may some day face nuclear jihad.

BILL MOYERS: No sooner had Congress left town after expanding the president's wiretapping program than a howl went up from civil libertarians, and bloggers left and right. The ACLU, American Civil Liberties Union, produced an ad likening Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to sheep because they gave into the White House.

Now some members of Congress are having second thoughts. The House Judiciary Committee opened hearings this week with testimony on the new surveillance powers.

REP. HANK JOHNSON (D-GA): Well let me ask you this question: if there was an American soldier in Iraq that sent an email to his girlfriend here in the United States then under this new FISA act that communication can be monitored because it concerns a person who is outside the United States, is that correct?

BOB BARR: That is correct.

JOHNSON: And there is no need for a warrant.

BARR: That is correct.

JOHNSON: No judicial oversight is called for.

BARR: Correct.

JOHNSON: And that can be for a student who may be over in England somewhere and communicates back with a phone call to their parents, that phone call can be monitored.

BARR: That is correct.

JOHNSON: A doctor who is traveling overseas may call a patient who is here in the United States and that phone call can be monitored.

BARR: That is correct.

JOHNSON: that email correspondence can be monitored.

BARR: That is correct.

PROF. ROBERT TURNER, UNIVERSITY OF VIRGINIA: They don't want to listen to grandma talking to grandson. When they find that conversation they will isolate it and they will destroy it. They will erase the recordings and so forth. If you tell Americans rather than overhearing grandma talking to grandson we're going to stop listening to the enemy and we're going to stop finding out where they're planning to kill grandson, most aren't going to understand that and they shouldn't understand that.

REP. DEBBIE WASSERMAN SCHULTZ (D-FL): The issue is that we have a lot of innocent communication that we are capturing unreasonably and unconstitutionally and that the law should be reformed so that we don't do that and people don't have to sit and wonder whether the government is listening to them for no good reason.

BILL MOYERS: Let's talk about this story now with two people who follow it closely.

Mickey Edwards served as a Republican congressman from Oklahoma for 16 years where he was a senior member of the House Republican leadership. A founding trustee of the Heritage Foundation, he teaches now at Princeton's Woodrow Wilson School of Public and International Affairs and is on the board of the Constitution Project, a non-partisan group whose purpose is to defend the Constitution. His book RECLAIMING CONSERVATISM will be out next March.

Anthony Romero has been Executive Director of the American Civil Liberties Union since four days before 9/11. Nice timing. Since then the ACLU has filed landmark litigation on the torture and abuse of detainees in U.S. custody and, more recently, gone to court to challenge the scope of the administration's secret surveillance program. Anthony Romero's new book is titled IN DEFENSE OF OUR AMERICA: THE FIGHT FOR CIVIL LIBERTIES IN THE AGE OF TERROR.

Welcome to THE JOURNAL.

BILL MOYERS: What's the heart of this debate, as you see it?

ANTHONY ROMERO: The debate really guts the Foreign Intelligence Surveillance Act. It allows the government to intercept the foreign communications of American citizens without any judicial review. And that's what our concern is, is when you place that much power in the hands of the executive branch, when you basically gut a system of checks and balances on our private communications, it opens it up to-- rife for abuse. And our biggest worry is that, in fact, the government is amassing great amounts of information on American's communications without judicial review.

BILL MOYERS: But the government already had the power to listen in secretly to two foreigners talking to each other. What's the change in this bill that Congress passed in August? What power does it now have it didn't have before?

MICKEY EDWARDS: : Well there are a couple of things. First let me say that the government has always had the power to do what the president believes needs to be done to protect the country. Has always had that power. But it has to be done in a certain way fitting, you know, fitting the Constitution, which includes a warrant and the laws being made by the Congress.

BILL MOYERS: But we're talking about something very specific. When a terrorist or a suspected terrorist can call from Pakistan-- to Dubuque as easily as I can call you in New York or you in Princeton, I mean, why shouldn't there be more vigilance over that?

ANTHONY ROMERO: Because you're talking about the communications of American citizens. And whenever you implicate the-- the privacy of an American citizen on American soil, you want individualized suspicion and you want judicial review. Otherwise, you completely gut the Fourth Amendment. You gut the Constitutional protections against unreasonable searches and seizures.

MICKEY EDWARDS: So one of the things that's happened is giving the-- much more leeway to the president and protecting-- allowing communications companies to be able to cooperate with the president, with the White House-- in eavesdropping on people and taking away from the American citizens the right to sue, the right to go after these companies for cooperating. So, there have been a lot of new powers that have been given to the executive branch in this revised FISA.

BILL MOYERS: Big government, big corporations, does that keep a conservative like you-- awake at night?

MICKEY EDWARDS: Oh, well, you know, it-- all of the things that George Bush is doing and all of the things that conservatives in Congress have been supporting him on are things that conservatives like me fought against. That's why we became conservatives because we thought it was people like Tony who were gonna do stuff like that. You know, it turns out, you know, it's our people who are doing it.

ANTHONY ROMERO: And I think that's exactly right. I think part of the concern here is about a neutral set of rules that apply to the executive branches of government regardless of who is in power. And I think some of the conservatives and some of the Republicans would be quite concerned, Bill, if you have a Hillary Clinton or a Barack Obama with exactly the same powers when they are president as now George Bush-- ascribes to himself.

BILL MOYERS: But the president and his men do argue that this is war and "I am the commander-in-chief. I have this power implicit or inherent in the Constitution as the commander-in-chief."

ANTHONY ROMERO: But that's the most dangerous part of what's I think the philosophical change coming out of Washington is this idea that you-- you deposit this much greater power in the executive branch. This idea of the unitary executive. This idea of the suped up, hypermuscular executive branch, which is not a co-equal branch of government to the judiciary or to the legislature.

MICKEY EDWARDS: He is not the head of government. He is head of one branch. He is not the head of the branch of government that has the power to declare war. He is not the head of the branch of government that has the power to take care of even decisions about what to do with prisoners of war. That in the constitution belongs to the Congress. You know, the Congress makes the laws. And-- and what we have here is a presidency, you know, that is seeking to change the entire system of government we have in order to accrue more power into the hands of the few individuals and say, you know, it's none of your business. You know, even though the Congress, you know, the lawmaking branch is supposed to represent the voice of the American people, we're not gonna tell you anything. You create a new bill, you tell a federal agency to do this and file a reports with the Congress, we're gonna say we don't have to.

BILL MOYERS: Let me ask you both the president wants to give these big telecom companies complete immunity from criminal prosecution and from civil liability if they help the government spy on Americans. What concerns you about that?

MICKEY EDWARDS: Well, first of all, anytime you start taking away from the American people the right to go to court to find out whether their rights are being violated, you know, then you-- then you have-- you start with a serious problem. I don't know what the court would find in any particular case. But when you say we have taken away-- the same thing with suspending habeas corpus, saying taking away from the people the right to be heard in court and to have their case adjudicated. I mean, that's a heck of a big step away from the Constitution.

ANTHONY ROMERO: And the question on the telecoms in particular is the fact that for the first time you would give the telecommunications the immunity from their consumers bringing challenges to them about their violation of privacy. For the first time you would allow the government direct access to people's private data through through the telecommunications firms.

MICKEY EDWARDS: I think that when you sign up with AOL to have an e-mail account or when you sign up with Verizon for to be your phone company, it never occurs to you that what you're doing is you are giving them the permission to turn over to the Justice Department or whoever else you know David Addington, you know, records--

BILL MOYERS: The vice-president's close advisor

ANTHONY ROMERO: Cheney Mr.Cheney.

MICKEY EDWARDS: You know, the records of who you call and who you e-mail and so forth. I mean-- and that you have no recourse. You have lost your ability to go after them.

BILL MOYERS: But no one wants another 9/11. And the fact of the matter is what's your answer to this, the fact of the matter is somebody must have been doing something right because we haven't been attacked again-- --since then. And-- if you two guys have your way will that make us more vulnerable because we can't track down that suspected terrorist--

BILL MOYERS: --who's calling home from Pakistan?

ANTHONY ROMERO: No. What we want to make sure is that there are rules of the road that are followed, that the government conducts good, lawful intelligence--

BILL MOYERS: And who makes the rules?

ANTHONY ROMERO: I think the rules have to be made by Congress with consultation with Congress and with the judicial branch, the Foreign Intelligence Surveillance Court and the federal courts. But the idea that the executive branch on its own has the power and the capacity to bypass the judicial branch, as it did now with this new FISA bill, or to completely bypass Congress, as the president did in authorizing the National Security Agency's spying program, really rubs counter to some of the basic tenets of our democracy, Bill.

MICKEY EDWARDS: You-- you ever watch these carnivals where we're, you know, you have the shell game and you hide the little pea under the shell and you move it around? Well, that's what the president's doing. The issue is not protecting us against terrorism. We all want to--

ANTHONY ROMERO: We all agree with that.

MICKEY EDWARDS: --protect against terrorism. You know, it's a matter of how it's done, whether you have to do it lawfully, whether you have to get a warrant. The old FISA act said, "Hey, do it." And you-- if there is a big rush and you have to surveill quickly, you don't have time for a warrant, do it and then come back and convince the court and let the court retroactively, you know, give you the warrant. So nobody was trying to stop this from happening. What the president wants to do is cut Congress out of it, cut the courts out of it, get rid of the requirement in the Constitution to get a warrant. You know, the--

BILL MOYERS: You raise a very important question because when they went to Congress and asked Congress for what they wanted, they got it. Congress has been going along. So isn't there a greater fear on the part of either of you that perhaps in the time of terror, both Congress and the presidency, the-- the executive branch are willing to go over the edge in terms of civil liberties?

ANTHONY ROMERO: Sure, Bill. At the very least, though, I mean, I agree with you. The reason why we're so angry with the leadership of the House and Senate, Bill, is that they didn't have to go along with this compromise so quickly. They acted like sheep. That ad is not hyperbole. We need leadership-- not leader-sheep, as we say in the ad.

ANTHONY ROMERO: --one of the most critical things that we need right now.

BILL MOYERS: But where's it gonna come from?

MICKEY EDWARDS: I think there are too few people in Congress in either party who understand that the Congress is the equal branch--


MICKEY EDWARDS: --not just separate and independent but equal. And so when the president requires in his view these additional powers, that should be grounds for a very serious set of hearings, debate, serious discussion by the Congress.

BILL MOYERS: Our system seems to be deadlocked.

ANTHONY ROMERO: And it affects ordinary people. There's a young man, Kot Hordynski, he's a remarkable young man. College student. Was organizing protests against the government and the war in Iraq.

And all of a sudden he finds himself on the TALON database, the Department of Defense database, labeled as a credible threat against the nation. And here you have this 20-year-old college student doing nothing more than just handing out flyers and having posters. He turns on his computer and he reads in an MSNBC Web site that he is labeled a credible threat to the nation.

Now, just a couple of weeks ago we find the Department of Defense closes down that TALON database. The worries that I have is that we don't know what other types of databases have been created. And especially the powers that are granted to the government with this new FISA bill allows for the cases like Kot Hordynski to exist that we may not know about for-- until decades to come.

MICKEY EDWARDS: Yes. This is a time for all of us to be worried. Al-Qaeda's not a joke. I mean, they're serious and they want to kill us and, you know, all of that threat is very, very real.

But I've gotta say, just to put this into context, at the time this country was founded we faced a greater threat--


MICKEY EDWARDS: --than al-Qaeda because, in fact, the British or the French had the power to wipe us out as a nation, you know, not to kill a thousand people but to wipe us out as a nation. And even in the face of that, those people sat down, they wrote a constitution and said, "We know the dangers. We are not going to give the president, a president, the power to be the sole decider." You know? And we have to keep coming back to, you know, we have to keep America what it is. That's what's exceptional about America.

ANTHONY ROMERO: And even though this might be a different type of war or a different type of context in the al-Qaeda in a way that it's-- not like a challenge that we confronted with the Second World War where you had declared enemies and the public-- the war on terror is never gonna come to a public decisive end the way that the Second World War did.

But the question for us is: Do we want to become a different type of America? Do we want the rights and responsibilities of who we are as Americans to change fundamentally? Especially in a context when the war on terror is never gonna come to a public decisive end. That's what concerns me most, Bill.

BILL MOYERS: Yeah, but see, that's the very point that the president would probably say, that in this war on terror, Congress cannot be equal. Only one commander-in-chief can act decisively and quickly to prevent a series of 9/11s.

MICKEY EDWARDS: I agree we need a strong president. We need one who has a vision. We need one who thinks and acts decisively.

But we don't need a strong presidency. We need a presidency that operates within the constitution and within the separation of powers. You know, the current president doesn't understand that. He thinks that here's a danger and I'm the boss and I'm the-- he has a greatly exaggerated view of what his authority is.

And, therefore, he doesn't understand the steps that's he's required to take, you know? If he were a good president, he would say, "I'm going to marshal the public support. I'm gonna go to the Congress. I'm gonna make my case. We're gonna have serious debates and discussions. And then together, you know, with the Congress taking the lead on the law, you know, we'll act." He doesn't-- he doesn't get that.

BILL MOYERS: Mickey Edwards, I look forward to your book. Tony Romero, I've read your book. And thanks to both of you for being on THE JOURNAL.

MICKEY EDWARDS: Thank you, Bill.

ANTHONY ROMERO: Our pleasure. Thank you.

BILL MOYERS: Now meet a man who knows a great deal about the difficult tradeoffs between protecting our privacy and defending our security in a time of terrorist threats. Jack Goldsmith had firsthand experience wrestling with the dilemma because his job as head of the Office of Legal Counsel at the Department of Justice was to advise President Bush on what he could and could not do legally. Considered one of the best and brightest conservative lawyers in the administration, a scholar from the University of Chicago, and legal advisor to the Defense Department, Jack Goldsmith was selected by the White House to help shape the legal framework for the government's response to terror.

He dealt with torture, surveillance, and how to detain and try enemy combatants. Sometimes he found himself at odds with powerful allies at the White House. He left in 2004 to teach at Harvard University. And now he's written this book THE TERROR PRESIDENCY. While I'm no lawyer, I found it a fascinating account of power politics at a time of war where necessity and law often collide. Welcome, Jack Goldsmith.

JACK GOLDSMITH: Thank you very much.

BILL MOYERS: I liked your book all the more because I served in government many years ago. And I know something about the pressures that are on people trying to make difficult decisions. So describe to me the mindset that you experienced and felt from others when you took over as director of the Office of Legal Counsel in 2003.

JACK GOLDSMITH: The defining atmosphere inside the administration when I was there was one of constant vigilance and constant fear that we were gonna have another attack. Every morning the president and his top advisors read these really horrifying, frightening threat reports.

BILL MOYERS: Yeah, the threat matrix, you call it.

JACK GOLDSMITH: The threat matrix, as I explain in the book, is basically a summary of every threat that's come into the government against the United States or its allies in the last 24 hours. And it's basically just a chart that lists the basic facts about each of the threats, their sources, their credibility, and the like. George Tenet basically said you read this stuff every morning and you're scared to death.

BILL MOYERS: He was the head of the CIA at the time you were there.

JACK GOLDSMITH: He was. And that's the way people felt. They're really frightened about another attack.

BILL MOYERS: So what does this do to you advise the president?

JACK GOLDSMITH: Well, as a legal advisor, it really made my job especially difficult because often the president, when he wanted to do things to push right up to the edge of the law and not pass the law. But he wanted to go right up to the edge of the law. And it was my job, among others, to advise him about where those lines were.

And whenever I or others would advise him that there was a line that he couldn't cross, that was sometimes viewed as a constraint that might tie his hands in a way that got people killed, frankly. And so it was the tradeoff between trying to abide by the rule of law and trying to do everything possible to prevent another attack was often harrowing.

BILL MOYERS: What do you mean, he wants to go right up against the law? Can you give me an example of that? A practical example of that?

JACK GOLDSMITH: Well, one example potentially, I can't get into talking about potential interrogation techniques, but in the interrogation of terrorists the administration obviously wanted to know where the line was so that they could use what the president called as tough interrogation techniques to try and get information from the terrorist. George Tenet said that the interrogation program, he said in his memoirs that the interrogation program was by far the most important program we have in the government. That it had done more to save lives and to prevent attacks. And the job of the lawyers was to decide where the line should be drawn, the legal lines.

BILL MOYERS: I remember Gonzalez saying you wanna get information in a hurry from somebody you've captured because there may be an attack on the way. And if this guy knows about it, you wanna find out about it as soon as you can. So does that push the law?

JACK GOLDSMITH: When they were deciding about the interrogation opinions in the in the summer of 2002, they were sure that on the second anniversary-- the first anniversary of 9/11, that there were gonna be bodies in the streets.

That was the atmosphere under which they were operating. So when they were trying to figure out how far they could go in getting information from the high-level detainees that they had, they really felt like they had to go to the limits of the law because they felt like that those were the stakes. There would be bodies in the streets of Washington.

BILL MOYERS: So how does it affect you when you're wrestling with an opinion that you know may actually increase the pain inflicted on another human being?

JACK GOLDSMITH: Well, I wrestled with that problem-- pain could have been inflicted whether I said yes or whether I said no. I mean, sometimes-- and-- it was--

BILL MOYERS: That's true. But what does the law have to do-- what does your opinion have to do with that?

JACK GOLDSMITH: Well, because our opinions determine what, to some degree, what the limit to how far the government could go. And what that meant was that if we ever said, "No, you can't go that far"-- David Addington once said to me, he was the vice-president's counsel. And he once said to me when I said-- when I advised that I didn't think something they wanted to do was lawful, he once said to me, "If you rule that way, then you will have the blood of 100,000 people who die in the next attack on your hands."

Those were the stakes that we were considering. Now, obviously that meant that I did everything I could, bent over backwards, to try to find a lawful way for the president to do what he wanted. So that was the atmosphere in which we were making decisions every day.

BILL MOYERS: And yet at the same time, I was amazed to read in your book that they were also concerned. All the people you were dealing with, the people writing opinions, making the decisions, were also concerned with not being prosecuted later for what they did. They were very worried about future prosecution for acts they performed in making these decisions.

JACK GOLDSMITH: Right. This presidency and this war - is under a set of legal constraints, really criminal legal constraints, that no prior president in a war of this scope or these stakes has been subject to.

BILL MOYERS: Where do they come from?

JACK GOLDSMITH: The set of laws that have grown up since the 1970s in response to Watergate and the abuses of the '60s and '70s and the intelligence agencies. And these laws have been developing and they really haven't been pressed in wartime crisis before. We've also had during that same period a rise of legal culture that is more hostile to the executive branch, the rise of independent counsels, foreign prosecutors, and the like.

So as fearful as everyone was of another attack and not being able to prevent it, they were also, at the same time, fearful of crossing the line. And they were really fearful that some of these criminal laws are vague, uncertain. We were-- we're under enormous pressure to go right up to the line. How far can we push through the gray areas of the law? How is it gonna look in five years when someone looks at this? What if some prosecutor down the road decides that we went too far?

BILL MOYERS: One of the fascinating parts of your book is your confirmation that the vice-president's office, as I read it, is really the true source of power in this administration. And that the vice-president's counsel, David Addington is, whom you call the eyes, ears, and voice of the vice-president, became one of your chief antagonists.

JACK GOLDSMITH: Right. David was one of my chief antagonists. I wouldn't say that I think that the vice-president was really running the administration. I mean, the president didn't agree with the vice-president on everything. And obviously the vice-president had a lot of influence.

But the vice-president and the president basically shared the same view of executive power. And it was a view of executive power that the vice-president had held for 20 or 25 years since he served in the Ford administration. It's also true that his counsel, David Addington had the same view as the vice-president. And he was a very, very powerful articulator of those views.

BILL MOYERS: You come to an illuminating moment for me in the book when you realize that, quote, "these people in the White House think of power as the absence of constraint. They could do anything as long as no one pressed back."

JACK GOLDSMITH: They did view presidential power in terms of the absence of constraint. This is why they didn't go to Congress because-- in the early years, because they thought going to Congress, Congress may say no. Congress may not give us everything we want. The very act of going to Congress may imply that we don't have the power on our own. And so they viewed presidential power as operating with minimum of constraint. And that's the conception of power that I certainly came not to share. And I talk in the book about Franklin Roosevelt who faced many similar--

BILL MOYERS: And Abraham Lincoln.

JACK GOLDSMITH: And Abraham Lincoln. But Roosevelt in particular faced many similar-- analogous problems as-- President Bush has in the post-9/11 period. But Roosevelt understood in a way that was really profound, I think, how his power could be increased and enhanced and he could do more in wartime and in crisis if he got Congress on board. And he understood contrain the idea of take of trading constraints, small constraints on presidential power or oversight or at least deliberation and consent in exchange for more power.

BILL MOYERS: What I don't understand, Mr. Goldsmith, is that the Republicans, their party, Bush's, Cheney's party was in control of Congress. Why didn't the Republican president go to the Republican majority and say, "Here's what I want"?

JACK GOLDSMITH: It was a puzzle to me about why the administration didn't go to Congress. And the answer was it was David Addington would always ask two questions. And this really captured the view of-- this really captured why they didn't go to Congress. One was, "Do we have the power to do it on our own? Do we have -- do we think we have the legal authorities, are there precedents that allow us to do this?" And the answer was almost always yes. The second question is, "If we go to Congress and try to get this affirmative authorization from Congress, is there a chance that Congress is gonna say no or to constrain us a little bit?"

The answer to that question was yes. And, therefore, if we could possibly be constrained and the president couldn't so what he wanted to do and people might get killed. And because of that chain of logic which basically these powers the absence of constraint-- they didn't go to Congress in the first four or five years.

BILL MOYERS: We won't ask for approval because we may not get it?

JACK GOLDSMITH: They don't ask for approval because they may not get it and then we're gonna be in a worst position in trying to protect Americans.

BILL MOYERS: There's a very moving section in your book when you talk about going to the prison in South Carolina, I believe, where the Muslim captive was being held. And you were allowed to look in. He doesn't see you but you see him. I mean, I felt some softening on your part--

JACK GOLDSMITH: Well, I don't know if it was a softening. It was my-- see, it was actually there were two prisoners. We visited Jose Padilla in Charleston, the Charleston brig. But it was actually Yelsir Hamdi, in----in the Norfolk-- brig who was an American citizen and enemy combatant.


JACK GOLDSMITH: And I wouldn't call it softening my position. But it was my-- it was actually my second week in Washington, and I was still working in the Defense Department. And I fully supported and the administration's authority to detain enemy combatants, including American citizens, without charge or trial, just as Franklin Roosevelt with hundreds of thousands of German and Italian soldiers in World War II. And I knew that we had the legal authorities to do this. But when I went to this dilapidated prison in a naval brig in Norfolk and we saw this young man in-- who was a foot soldier for the Taliban. And he was off in a wing by himself. And we saw him through a fuzzy black and white television in the corner of a room. And he was sitting in the corner of his isolated cell.

And he hadn't seen many people for a long time. And he was in a fetal position in his bed, sitting there. And I did have this moment where I said I know we have a legal authority to do that. But is this the right way-- to do this? And I used that story to start off a chapter about how-- the administration often mistook legal authorities for prudent exercises of power. . So I did have a soft moment, I guess you'd call it there-- but that was my reaction.

BILL MOYERS: You write that some of the opinions, the earlier opinions that you were called upon to examine again, you write that some of the opinions were deeply flawed, sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authority on behalf of the president. That's a pretty strong description.

JACK GOLDSMITH: It is a strong description. And-- that was my view of the matter. I was pretty astounded when I-- when I read them.

BILL MOYERS: What would-- what would the response be when you said, "Well, hey, wait a minute, this is not right"?

JACK GOLDSMITH: Well, it-- had different responses for different opinions and different issues. With regard to the interrogation opinions, I was able to-- there were two of them. One of them I was able to replace and fix without any controversy at all. The other one, later in my term right before I resigned, I withdrew without being able to put in a replacement opinion. And that caused more of a stir within the government.

BILL MOYERS: What was the stir?


BILL MOYERS: What did they wanna do you said you can't do?

JACK GOLDSMITH: Well, there wasn't anything they wanted to do necessarily I said that they can't do. But when the Abu Ghraib scandal broke and when these opinions that I had six months earlier concluded were flawed leaked out, I was under understandable pressure to stand by the opinion of my predecessor because-- many people in the government had relied on these opinions and had taken-- actions and reliance on them.

These programs had been vetted at the highest levels of the government and briefed to the Congress. And what I was basically doing was pulling out the legal foundation for what had been going on our at least trying to fix it 'cause I thought it was flawed. So it was very disruptive because when the Justice Department says that an opinion we're relying on is flawed, that really, really makes people worried. The Central Intelligence Agency in particular has a history of-- being asked to do aggressive things for the country and then later, in a different political environment-- getting in trouble for it.

And they thought when they went to the Department of Justice and got these interrogation opinions that they were-- they had a golden shield, as one lawyer told me. And I was in the unfortunate position of having to withdraw and try to redo that golden shield. And I wasn't happy about it. I wasn't happy about the consequences. Did everything I could to do it - as calmly and with as little disruption as possible. But-- that's what happened.

BILL MOYERS: I wanna talk to you about the most amazing scene you ever witnessed. That's your term for what happened. You actually wound up at the hospital that night when Gonzalez, the White House counsel and the White House chief of staff, Andrew Card, came to the hospital to try to persuade Attorney General John Ashcroft to give his permission to some secret-- policy that was about to expire. Why was it the most amazing scene you ever witnessed?

JACK GOLDSMITH: Well, because I was there with Deputy Attorney General and Acting Attorney General Jim Comey. And he had-- made a ruling on the basis of my legal advice, which he agreed with. And they were there to seek reconsideration from Ashcroft, from Attorney General Ashcroft.

It was the most amazing scene I'd ever witnessed because, first of all, I couldn't believe-- he was obviously extremely ill. He'd had a serious operation the day before. He-- when we walked into the room, he had lost a lot of weight since I'd seen him last. He looked ashen. He looked terrible. He had the tubes and wires coming out of his body.

And it was the most amazing scene because in this what seemed like near-death state to me and they came in and made their request, he kind of, in an astonishing way, came to life, sort of lifted himself off the bed a bit, color came into his face. And in an amazingly clear and accurate two-minute speech, he said, "These are the Justice Department's concerns. Share these concerns. I don't appreciate you visiting me here. I'm not the attorney general in any event. Jim Comey is." And then he collapsed back into his bed. And--

BILL MOYERS: Did you think he was gonna die?

JACK GOLDSMITH: I did. That was my thought. I thought that-- that this-- it seems like that's it. He just expired himself. He didn't, thank god. But-- it was an extraordinary scene.

BILL MOYERS: What did Mrs. Ashcroft do?

JACK GOLDSMITH: Mrs. Ashcroft, who was sitting behind her husband the entire time watching this scene play out with her obviously extremely critically ill husband, and she was deeply distressed. It was apparent from her face about what was going on. And she-- I don't know her well, but she's a very sweet woman. And as they turned to walk out of the room, she basically just stuck her tongue out at them in anger and disappointment or disapproval.

BILL MOYERS: As you look back on it, what do you-- what does it represent to you?

JACK GOLDSMITH: To me the hospital scene represents the central conflict that I talk about in the book. They were there because they needed to get Justice Department to sign off because they were talking about laws that they were afraid without just-- they were-- the fear of law part of what dominated-- terrorist-related decision making. They were also there because they worried terribly that the Justice Department's legal advice, if accepted, would result in tying the president's hands in a way that would-- cause another attack.

And this is at a time when two other things were happening. So they were under real pressure. One, as George Tenet wrote in his memoirs, it was a time when the threats from terrorists were greater than at any point since 9/11. It was also at a time when the 9/11 Commission was meeting in public hearings and berating the administration every day for not finding the needle in a haystack in 9/11 - and pounding on them to be more aggressive, less risk averse, more proactive. So those are the pressures that they-- the conflicting pressures that led them to this extraordinary scene in the hospital room.

BILL MOYERS: And they were never resolved those pressures. They still--

BILL MOYERS: --exist today.

JACK GOLDSMITH: I'm quite confident they haven't diminished one bit since I left.

BILL MOYERS: Because right after 9/11 the president said we're in a national emergency. And nobody's ever changed that definition. Are we still in a national--

JACK GOLDSMITH: We're still technically in a national emergency. The emergency he declared just after 9/11 is still in place and has been renewed every year since 9/11. So technically we're still in a state of national emergency.

BILL MOYERS: Doesn't this mean that president can continue to claim and the president after him continue to claim extraordinary powers as commander-in-chief?

JACK GOLDSMITH: Well, we're not only in a national emergency but Congress and the Supreme Court has agreed that we're in war. There's a lot of debate about whether we should call this the war on terrorism. But whatever you think about the rhetoric and the label, the legal authorities for war are in place. Congress and the courts have made that clear.

And for the foreseeable future, that means, I believe, that the president's war powers will be triggered. And the president has heightened powers and authorities during war. And that means for the foreseeable future, yes, that the president will have extraordinary authorities.

BILL MOYERS: The book ends with- a plaintive-- lament about the growth of presidential powers. It's not about Bush, per se, but about the growth of presidential powers. What concerns you as a lawyer and a citizen about this expanding definition of the powers of the president?

JACK GOLDSMITH: Well, if I could just qualify what you said first. I'm not sure I would characterize it as a lament. At least I would say that I came away from government understanding having a full-- appreciation for why it's extraordinarily important to have a powerful presidency and a presidency that can move quickly and aggressively to check the threat.

I also came away, and this perhaps is the lament part, thinking and understanding that the executive branch is a very dangerous place in the sense that the president can control the military and the intelligence authorities. He can interpret the law for himself. And he can act in secret. And any institution and all those things are necessary for him to do the things to keep us safe. But they're also-- the qualities of the presidency that, for hundreds of years, have led people to worry about presidential abuse in wartime. So-- those twin — the necessity for the presidency is more than ever. And the dangers of the presidency are more than ever.

BILL MOYERS: Jack Goldsmith, I hope a lot of people read THE TERROR PRESIDENCY. Thank you for joining me on THE JOURNAL.

ED WILEY: Yes we all need to stand for our children and their future. Here you can have a pamphlet while you're reading — it's about our children in America and our future.

BILL MOYERS: Ed Wiley came up to new york this week from West Virginia.

ED WILEY: I'm here in New York trying to get on the Today Show, and I want America to know this is about your children.

BILL MOYERS: He wants the national media to pay attention to what's happening back home.

What he wants the press to report is this: coal companies...blasting off the tops of the mountains and dumping the waste in communities, streams, and rivers all over his state.

ED WILEY: We have an elementary school there, Sundial, West Virginia, that's being affected by coal mining, mountaintop removal and clean coal technology. My granddaughter attended school there, she come out of there very, very sick one day. And I actually worked on these sites and didn't realize what I was back there doing.

BILL MOYERS: Mountain top removal is devastating West Virginia. And last year Ed Wiley walked all the way from Charleston to Washington — 455 miles — hoping someone high in the administration would hear his S.O.S. nobody did.

Instead, just two weeks ago President Bush gave the green light for coal companies to go for broke — rip off more mountain tops to get at the coal underneath. The argument is, we have to have that black gold to meet our energy needs. `but it's a devil's bargain — over 700 miles of Appalachian streams have already been buried under mining waste, and another seven hundred miles are likely to disappear in the coming decade. Some Christians there don't like this bargain with the devil, and they're fighting back.

MUSIC: In Southern West Virginia,
They're taking away our hills.
They're tearing up our mountains
And making valley fill…

BILL MOYERS: The Appalachian Mountains Of West Virginia. They were made in a day by the Lord if you're a strict creationist. They're among the earliest formed in the world if you set your watch by geologic time. Either way, they are under assault.

BILL MOYERS: Coal companies are blowing the tops off mountains to extract the rich seams of black gold within.

JUDY BONDS: There are three million pounds of explosives used a day just in West Virginia to blow the tops off these mountains. Three million pounds a knock fly rock everywhere, to send silica and coal dust and rock dust and fly rock in our homes. I'm kinda thinking — I wonder — now which one of these mountains do you think God will come down here and blow up? Which one of these hollers do you think Jesus would store waste in? That's a simple question. That's all you have to ask.

BILL MOYERS: Judy Bonds' family has been in these mountains for ten generations. She's a winner of one of the world's most prestigious environmental awards — The Goldman Prize.

JUDY BONDS: As of last year, there was 400,000 acres of the world's most diverse forest completely destroyed forever. Then there's 1200 miles of stream have been affected. Seven hundred miles have been buried by mountaintop removal, which has selenium discharges in it. There's brackish water comin' out of it. Nothing can live in this type of water.

PREACHER: Do you remember the first time you fell in love with Jesus?

BILL MOYERS: Bonds was a raised a Christian, then strayed from the church. This fight, she says, has brought her back to God.

PREACHER: What sacrifice…

JUDY BONDS: It was the unjustness that I saw that was being heaped upon the people that the blasting and children suffering from the coal dust. And the elderly suffering from the coal dust. And the flooding. And I began to pray for help. For guidance.

PREACHER: I'll do whatever it takes to fight for my country. To protect the ocean, to protect our environment. I'll do whatever it takes…

BILL MOYERS: Now Bonds is bringing her faith to her fight for the mountains, part of a growing movement in West Virginia in which concern for the earth is guided by the Bible.

JUDY BONDS: Never doubt that this is a battle between good and evil! And now is not a time to be silent. Now is a time to stand up and be counted for. The earth is God's body!

ALLEN JOHNSON: I first want to apologize as a Christian for the unfaithfulness of the churches and Christians who have oftentimes - too often - been complicit in the destruction that we see upon the land!

BILL MOYERS: Allen Johnson is part of the same campaign. He co-founded an advocacy group Christians for the Mountains.

ALLEN JOHNSON: In the Book of Revelation there's a scripture that says that God will destroy those who destroy the Earth." We're breaking a covenant with God. We're breaking a covenant with Creation and with other people and with future generations. It is a sin. Sin's not a word that-- is popular today-- or its-- but it-- but that's what it is. S-I-N.

THE JOHNSONS: Give us, Lord, our daily bread.

BILL MOYERS: Johnson is a librarian. He and his wife have home-schooled their four children. They live off their land, growing their own vegetables, raising animals for food. On Sundays, he sings and plays in the church band.

In a region where many depend on coal for their livelihoods, Allen Johnson and Judy Bonds are speaking out, against mountaintop removal and for the people who consider themselves its collateral damage.

ALLEN JOHNSON: We are basically told this is your economy. Take it or leave it. If you don't have coal, you'll have nothing. You'll be even more impoverished than you are now. And, so people are in a sense held hostage by the-- by the coal industry.

BILL MOYERS: Here's what Allen Johnson is talking about. Coal processing produces toxic residue called sludge and slurry. It's estimated there's over one-hundred and ten billion gallons amassed in active West Virginia impoundments.

ALLEN JOHNSON: And there it sets-- black, gooey, tarry, toxic-- sludge or slurry-- is there.

BILL MOYERS: It's stored in open pools atop the flattened mountains, or, in some cases, pumped into abandoned underground mines.

ALLEN JOHNSON: But what is happening in those cases is the-- it's getting into the groundwater in some places.

BILL MOYERS: Carmelita Brown and her husband Ernie live in the town of Rawl, in Mingo County, downhill from a mountaintop coal mine. Because of mining activities, they say, they can no longer rely on clean well water.

CARMELITA BROWN: I never know when it's going to come. You know, just like one day it'll be clear. And, the next day it'll come out black. Or half a day it'll be clear and the rest of the half of the day it'll be black. And, it is so embarrassing to me when people come into my home and they'll look at you and say, "What's that smell?" You know, and I know they don't mean anything by it. And, I have to say, "That's my water."

BILL MOYERS: Carmelita Brown's husband, Ernie, was a coalminer like his grandfathers before him until on-the-job injuries forced him to retire.

ERNIE BROWN: Poor, old, sore knees…

ERNIE BROWN: What I'm going to do, I'm going to take a water sample of my water with Pepto Bismol. This is Pepto Bismol. This is potable water, this is jug water. I'm going to try to use the same amount of water.

BETSY RATE: How did you discover it?

ERNIE BROWN: Accident. My daughter-in-law had a upset stomach and my wife told her said, "I've got some Pepto Bismol so take you some Pepto Bismol and it'll help you." So she come in and got her some Pepto Bismol and took it. She took the little cup over into my sink and rinsed it out. And it turned black. And I said, "Gimme that Pepto Bismol." And I put a little bit in a little bit in a glass. It turned black. And I said, "Oh my goodness. I'm guessin' chemical reaction."

BILL MOYERS: The Browns aren't alone. Some of their neighbors are having water trouble too.

CARMELITA BROWN: You've got 750 some that live in these four communities. And our challenge is to fight for good water.

LARRY BROWN: Just simply to have the right to walk over to our spigot and turn it on and have decent water.

BILL MOYERS: Independent scientists tested the water about two years ago. What they found shocked the community, says Ernie Brown's brother, Pastor Larry Brown.

LARRY BROWN: They was testin' all the water. And the more they tested it the more they was finding.

BILLY SAMMONS: Arsenic, manganese, lead, barium, selenium, aluminum and stuff like that.

BILL MOYERS: Billy Irwin Sammons is a retired deputy sheriff.

BILLY SAMMONS: My left kidney is plumb full of kidney stones now. And the scientists tell us-- tell us this-- the ones we've dealt with. This is caused by the chemicals gathering inside of your body.

CARMELITA BROWN: So for my own purpose, I started taking a log.

BILL MOYERS: In her journal, Carmelita Brown has kept track of what's been happening to her water - and to her body.

CARMELITA BROWN: "I'm sick. I have kidney stones. My doctor tells me to drink plenty of water but that is hard to do when I don't have drinkable water. I have dealt with this problem for far too long. All I have asked for--" Sorry. "All I've asked for is water that I could drink and take a bath in, or cook with." "But that seems to be far outta reach."

MASSEY WEB/TV AD: "At Massey Energy we respect the beauty of our mountains, rivers and streams. We also know that improving our total environment includes making people's lives better. The needs of people - that's what the protesters against coal forget."

BILL MOYERS: Massey Energy is the region's largest coal company…

The Browns and their neighbors claim that a Massey Energy subsidiary - called Rawl Sales and Processing - has contaminated their water.

They have joined scores of Mingo County residents to sue both the subsidiary and Massey charging them with negligence ...allowing toxic slurry to leach into groundwater.

Over the years, Massey and its subsidiaries have paid out millions of dollars in environmental judgments and settlements.

MAN: It's like very stiff grease.

BILL MOYERS: Like the settlements resulting from this disaster - when some 300-million gallons of coal slurry buried creeks and streams, killing over a million fish. One coal official called it an "Act of God."

ALLEN JOHNSON: It's a legal term, the "act of God," when there's a flood, or-- a major catastrophe. "Well, it was God's fault." And-- it's not God's fault.

CARMELITA BROWN: "God didn't destroy the earth. And, he doesn't destroy the earth. The companies, the coal companies is the ones that's destroying the earth. So, that's my opinion on that.

BILL MOYERS: In taking on Massey the Browns and their neighbors are taking on Massey's president and C.E.O., Don Blankenship. A local boy turned big time powerbroker, he laid out his philosophy early in his career.

DON BLANKENSHIP: Unions, communities, people, everybody's gonna have to learn to accept that in the United States you have a capitalist society, and that capitalism, from a business viewpoint is survival of the most productive.

BILL MOYERS: Blankenship's supporters here say amen to that.

PROTESTORS: We are Massey! Here to stay!

BILL MOYERS: Not Carmelita Brown.

CARMELITA BROWN: I can see his house from my kitchen window. And it's ironic that I can stand and do my dishes in black water and then, look out my window and see his house up on a hill that everyone can see. To me, it's like he made a statement. You know? He's God. God on the mountain. But, he's as close to God as he's gonna get up on that mountain.

BILL MOYERS: Blankenship has made news spending millions of his own dollars to finance campaigns and causes in state elections.

The people here don't have that kind of clout. They've been trying for twelve years to get the government to provide them with the regular supply of clean water other citizens enjoy. Finally, new pipes are being laid that will eventually bring city water to the affected communities. In the meantime, church volunteers deliver water to the sick and elderly.

BILLY SAMMONS: I didn't get to bring you water last week. And we're about to run out of money on the water problem. So, I'm gonna give you additional water this week, OK?

RUTH SAUL: Well, God love you!

BILL MOYERS: Churches stand at the center of nearly every community in West Virginia. What Christian activists here want is to enlist them on the side of the environment.

ALLEN JOHNSON: What we wanna do, in Christians for the Mountains, is to try to get these churches-- ask these churches: invite them to-- explore this as a theological and Biblical issue.

JUDY BONDS: The problem is, is those that work for these coal companies, the locals that work for these coal companies also go to church sometimes and it creates conflict.

ALLEN JOHNSON: Some people say that churches are in the pockets of the coal company. And maybe they want to build a picnic shelter, so the coal company helped-- give a nice donation. I think there are some-- pointed questions we can ask these churches. And we can ask them, now "Are you gonna say nothing because you're getting some money?" Or, are you gonna say, "We don't wanna say anything because somebody in our church is getting their job is connected with the-- polluters." And so, you don't-- gonna say anything. What does that say? Now, justify that scripturally.

CARMELITA BROWN: There's a lot times-- you know-- that I have lost some of my faith. And I start saying, "God? Where are you?"

ERNIE BROWN: Brother Thomas, remember me and Carm tonight, and my family. Let's remember the ones in the hospitals and nursing homes. Let's remember the ones that's not here tonight. Let's just pray that the Lord will strengthen us and lead us and guide us…

MUSIC: Never grow old, never grow old. In the land where we'll never grow old…

BILL MOYERS: There have been some developments since we finished that report.

After battling for thirteen years Carmelita and Ernie Brown and over three hundred other families finally have clean municipal water piped into their homes. They still struggle with their health problems, but the browns told us they thank god every day that at last they can bathe and wash their clothes without worry.

JUDY BONDS: We need alternatives, we need conservation, we need education…

BILL MOYERS: Judy Bonds and Allen Johnson told us they are starting to pick up support for their cause among faith communities in and beyond West Virginia. Go to and you can find out about the film they produced about what's happening there.

In May Allen and two dozen religious leaders signed an interfaith statement calling on believers to make mountaintop removal "a spiritual issue" so that 'we return to our homes enriched by the beauty of the mountains and their inhabitants, determined to live more fully with care of creation."

As for the powerbroker himself, Don Blankenship - he spent $3.7 million of his own money trying to influence the local elections, but his efforts this time fell flat.

But then, last month, President Bush dashed the hopes of Christians for the mountains by making it easier for mining companies to blast and remove even more of the mountains. The president's new rule is open to a 60-day public comment period. You can make your voice heard by going to our journal page at

See you next week. I'm Bill Moyers.

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