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Power and the Presidency
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October 26, 2007

Executive privilege, alleged torture, warrentless wiretapping — the Bush Administration has come under fire as the powers the President and Vice President have assumed in the name of national security have come to public attention. But charges of executive overreach are nothing new, nor are they exclusive to one political party, as this week's guests, Charles Fried and Fritz Schwarz know all too well.

Charles Fried

In a recent Op-Ed for THE BOSTON GLOBE entitled "The Limits of Law", Charles Fried sites historical examples when presidents have bypassed law in order to protect the nation:
"In the end Lincoln and Roosevelt were lucky. They chose their transgressions - if transgressions they were - well and sparingly. They did not seek to provoke - only to succeed. In fairly short order, it became obvious that they were right. Bush, through a combination of bad judgment, bad advice, and bad luck, had made the case for discretion and reasonableness disreputable."
Mr. Fried served as Solicitor General of the United States under President Reagan from 1985-1988. After Reagan left office, Fried returned to Harvard Law School as a distinguished lecturer. Charles Fried by Robin Holland

From 1995 until 1999, while teaching constitutional law at Harvard, Charles Fried was an Associate Justice of the Supreme Judicial Court of Massachusetts, "the oldest appellate court in continuous existence in the Western Hemisphere."

Justice Fried has written extensively on constitutional law, most recently in MODERN LIBERTY AND THE LIMITS OF GOVERNMENT, published by W.W.Norton, in which he examines how the modern state has affected our individual liberty.

Frederick Schwarz

Frederick (Fritz) A. O. Schwarz, Jr. is the senior counsel at the Brennan Center for Justice at NYU Law School. He had been a partner with the law firm Cravath, Swaine & Moore since 1969.

Schwarz was the lead counsel for the Church Committee, a Senate committee formed in 1975 in reaction to the Watergate scandal that investigated executive overreach stretching back to the FDR administration, eventually issuing 14 reports over three years. Certain aspects of the report ring true with respect to more recent administrations as well:

"Secrecy is essential to covert operations; secrecy can, however, become a source of power, a barrier to serious policy debate within the government, and a means of circumventing the established checks and procedures of government."
>More on FISA and the Church Committee

Fritz Schwarz by Robin Holland His most recent work, UNCHECKED AND UNBALANCED: PRESIDENTIAL POWER IN A TIME OF TERROR, which Schwarz co-wrote with Aziz Z. Huq, highlights the Bush Administration's push to expand the executive branch in the wake of 9/11. The authors conclude:

"Making the executive supreme makes the nation no safer - either from its enemies or its own worse impulses..Indeed, the abiding genius of the Founding Generation was its rejection of the idea that unchecked unilateral power is ever properly vested in any one branch of government."
Mr. Schwarz has served as corporation counsel of New York City, chairman of the New York City Charter Revision Commission, and chief counsel of the Senate Select Committee on Intelligence. He currently chairs the New York City Campaign Finance Board, an independent agency dedicated to strengthening New York City's democratic process.

>More on civil liberties in wartime

Guest photos by Robin Holland

Published on October 26, 2007

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Watch Nixon lawyer John Dean discuss presidential secrecy with Bill Moyers on NOW with Bill Moyers, April 2, 2004.



License to Spy
Bill Moyers talks with former Congressman Mickey Edwards and ACLU Executive Director Anthony Romero about revisions to the Foreign Intelligence Surveillance Act.

References and Reading:
FRONTLINE: Cheney's Law
Watch in the full the recent FRONTLINE program about the Bush Administration's push to expand the powers of the Executive.

More on the Mukasey Hearings

Read Senator Specter's Letter to Judge Mukasey Regarding Presidential Power
Specter writes, "If you believe the President can act outside the law, how do you square that belief with your statement at the hearing that 'The President doesn't stand above the law[?]' How do you deal with the public concern that the rule of law is supreme and the President at times appears to put himself above the law?"

Mukasey Vows to Keep Politics Away From Justice Dept.
By Philip Shenon, THE NEW YORK TIMES, October 17, 2007
"President Bush's nominee for attorney general, Michael B. Mukasey, pledged today to block political meddling at the Justice Department but did not make a similar promise to disown the Bush administration's most controversial antiterrorism policies."

Watch the Senate Judiciary question Attorney General Nominee, Judge Mukasey, Oct. 17, 2007

More on Charles Fried

The Limits of Law
By Charles Fried, THE BOSTON GLOBE, October 23, 2007
"Bush, through a combination of bad judgment, bad advice, and bad luck, had made the case for discretion and reasonableness disreputable."

Federalism Has a Right to Life, Too
By Charles Fried, THE NEW YORK TIMES, March 23, 2005
"In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades."

The Case for Surveillance
By Charles Fried, THE BOSTON GLOBE, December 30, 2005
"In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified."

Patrick's 'oath'
By Charles Fried, THE BOSTON GLOBE, January 5, 2007
"I regret that the Supreme Judicial Court, in its closely divided 2003 decision in the Goodridge case, proclaimed that the state Constitution requires same-sex marriage."

An op-ed by Professor Charles Fried discusses legal representation in America, WALL STREET JOURNAL, January 16, 2007
"Defense Department official Charles Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation's leading law firms, and in calling on their corporate clients to punish them for this work."

Modern Liberty and the Limits of Government, a panel discussion
Watch this Harvard Law School panel discuss on Professor Fried's recent book, MODERN LIBERTY AND THE LIMITS OF GOVERNMENT.

More on Fritz Schwarz

UNCHECKED AND UNBALANCED, Book Review
By Michiko Kakutani, THE NEW YORK TIMES, July 6, 2007
"As this important book, UNCHECKED AND UNBALANCED points out, the Bush White House has repeatedly sought to expand its powers, often doing so in secret, while sidelining both Congress and the judiciary. President Bush secretly authorized the National Security Agency to eavesdrop without obtaining a court order on calls and e-mail messages sent from the United States to other countries."

Alan Chartock in Conversation with Fritz Schwarz
Listen to public radio's Alan Chartock talk with Fritz Schwarz about his recent book, UNCHECKED AND UNBALANCED, as well as his work on the Church Committee.

Read the Church Committee Reports
From the AARC Public Library, read the 14 reports issued by the Church Committee. From the AARC Web site: "These 14 reports are the most extensive review of intelligence activities ever made public."

Professor Schwarz testifies before the Standing Committee on the Judiciary of the Assembly of the State of New York (11/15/06)(pdf)

Also This Week:

POWER AND THE PRESIDENCY
Bill Moyers talks with constitutional law professor Charles Fried and lawyer and author Fritz Schwarz on the growing power of the executive branch.

LESSONS FROM HISTORY
The post-Watergate Church Committee led to the Foreign Intelligence Surveillance Act (FISA). The war on terror's led to FISA revisions. What's next for domestic intelligence?

THE NEED TO KNOW
Where do you draw the line on secrecy in a democracy? The new classification process and the Freedom of Information Act.

>Is a Presidential Coup Under Way? by Jim Hightower

>More on presidential signing statements

>More on civil liberties in wartime

>More on the torture debate

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