BILL MOYERS: All right, let's talk about circumstance for a moment. Because we now know that within weeks of 9/11, Vice-president Cheney was arguing that the administration could ignore the laws to start intercepting e-mails and telephone calls. What he said he was doing what he had to do. Would you likely have done the same thing under those--

CHARLES FRIED: Yes.

BILL MOYERS: --exceptional circumstances?

CHARLES FRIED: Yes.

BILL MOYERS: You would?

CHARLES FRIED: Yes. I certainly would have.

BILL MOYERS: You see those towers. You know you're under attack. The Pentagon has been--

CHARLES FRIED: Yes. Yes. Yes.

BILL MOYERS: You would have done it?

CHARLES FRIED: I certainly would have.

FRITZ SCHWARZ: I would--

CHARLES FRIED: And I-- so would you.

FRITZ SCHWARZ: I would have taken a deep breath. The president has power to do things immediately. They should have had planes in the air right away, so forth and so on.

But, on Charles's main point where-- the one point where he says he makes a powerful point about, well, maybe if it's just amorphous listening, no one's individual rights are being affected. Maybe that's true. But I am certainly that they're not only doing amorphous listening. And when you're actually zeroing in on someone, the requirement to get a warrant, even it's granted almost always, forces the government to think harder than when the government can act, knowing that there's no check on it, no check by a court and no check by a Congress because they will try and withhold the information from the Congress.

BILL MOYERS: But after 9/11 would you have gone to the court, FISA, and asked for a warrant to start trying to figure out who did it or if they have allies or sleepers or other agents?

CHARLES FRIED: You can't because--

BILL MOYERS: Don't let him off-- don't let him off the hook.

CHARLES FRIED: --he agrees with me on that.

FRITZ SCHWARZ: The but they didn't know what they wanted to do. If Cheney just had wanted to establish the principle of the president has the power to do whatever he wants to, they knew very soon what they wanted to do. And they went to Congress and they got amendments. Then at the same time, as they're going to Congress and get amendments, they're going off secretly without telling anybody and doing more.

FRITZ SCHWARZ: John Yoo takes the position that the American president inherited the power of the British king to violate the law and that somehow we who fought a revolution to get rid the monarchy silently adopted it. The trouble with that argument, among many others, is that the English themselves, a hundred years before our Constitution, in The Glorious Revolution and in the acts that follow that abandoned and rejected the idea that the king has the right to break the laws of England.

We try in this book, UNCHECKED AND UNBALANCED, to show that the theory, this dangerous theory which Nixon announced and people laugh at but you can't laugh at it today, this dangerous theory is one that needs to be put down.

BILL MOYERS: The theory that the president can--

BILL MOYERS: --become a monarchy.

FRITZ SCHWARZ: Yes.

CHARLES FRIED: And that's-- and that's not what I'm saying.

BILL MOYERS: I know you're not.

CHARLES FRIED: I'm saying that to be above the law is one thing. To be above a statute passed by Congress which exceeds Congress's power is not to put yourself above the law.

BILL MOYERS: Ah, but you were in-- you Were Solicitor General at the time of the Iran-Contra-- affair.

CHARLES FRIED: Right, right.

BILL MOYERS: Remember that?

CHARLES FRIED: I sure do.

BILL MOYERS: And Congress held hearings on that Iran-Contra affair, almost in the tradition of the Church Committee ten years earlier, accusing the president of breaking the law to support the rebels in Central America. That's a

CHARLES FRIED: --the Boland amendment.

BILL MOYERS: Yeah. The minority report of that congressional committee said, quote, the chief executive will on occasion feel duty-bound to assert monarchical notions of prerogative that will permit him to exceed the laws. The leading advocate in Congress of that particular-

BILL MOYERS: --position and sentence was--

CHARLES FRIED: Dick Cheney, yes.

BILL MOYERS: He's saying that the president--is a monarchy.

CHARLES FRIED: And- here is where I would fault that statement. But I would fault it because it's nothing that should be asserted as a legal proposition. It's something that has to be acknowledged as a fact of life. Lincoln did. Roosevelt did. And if you put it into a legal opinion, it becomes a precedent.

FRITZ SCHWARZ: It becomes a loaded pistol.

CHARLES FRIED: Becomes a loaded pistol which lies about for anyone to use. And if you then endorse it as a legal principle, it's very dangerous. But as a reality, it has happened, has always happened. Let me give you a--

BILL MOYERS: Well, as a political, I don't think Cheney-- who knows what he meant. But I don't think he meant it legally. I think he meant it politically that you do not--

CHARLES FRIED: But then he should have shut up about it.

BILL MOYERS: Well, but--

CHARLES FRIED: And just done it.

FRITZ SCHWARZ: And, of course, he resaid it after in 2002 or 2003. He said, if you want to understand my views, go back and look at what I said and what David Addington who works for me helped me say--

BILL MOYERS: He did--

FRITZ SCHWARZ: --in that Iran-Contra report.

CHARLES FRIED: --big mistake. Big mistake.

BILL MOYERS: But now he has the power. He has the opportunity. He's been doing what he said--

CHARLES FRIED: He has the power for a few more months. I'm afraid-- well, we're all paying the price.

BILL MOYERS: You know, back when you were in Washington, Dick Cheney said then that it was okay for Oliver North to lie to Congress because Congress shouldn't have been asking those questions in the first place. Congress was butting in. Remember that? When he--

CHARLES FRIED: Well, I think-- to take a somewhat-- to go from the sublime to the ridiculous-- Bill Clinton should not have answered those questions about Monica Lewinsky. And--

BILL MOYERS: Why?

CHARLES FRIED: He should not have answered them. But that's not the same thing as that he should have lied. And that's the point. If Oliver North thought that those were improper questions, which maybe they were-- he should have said, "I will not answer those questions. Go ahead and hold me for contempt." And-- Bill Clinton should have said, "These are indecent questions. I will not answer them. Go ahead. Default my lawsuit." But lying? No. Lying is a different story.

FRITZ SCHWARZ: And particularly lying about matters of-- where the public has a legitimate interest. Neither one should have lied. But there is a difference between lying about a private matter and lying about a public matter.

BILL MOYERS: Let me get back to what it seems to me is the heart of this issue and this discussion. Fritz, you say in your book that for, quote-- I'm quoting, "For the first time in American history, the executive branch claims authority under the Constitution to set aside laws permanently." It's that-- it's that permanently that you nail there. You think that takes this whole question of imperial presidencies beyond any precedent in the past?

FRITZ SCHWARZ: Well, it's-- I do, without any question. It's beyond--

BILL MOYERS: That Bush is worse than anybody else?

FRITZ SCHWARZ: On this subject, I think he's worse than anybody else.

BILL MOYERS: Of power.

FRITZ SCHWARZ: Bush, slash, Cheney are worse than anybody else.

BILL MOYERS: And you say this is a frightening idea.

FRITZ SCHWARZ: It's a horrible idea. Because, the next president, by whatever party, of whatever party, if that idea is not nailed on the head-- we risk other people doing it. And the Mukasey hearings, interestingly, I think could create an important-- understanding in the nation. If he comes back in answering these questions and doesn't sort of weasel around the subject and says, "I do reject the idea that the president can defy the law," leaving aside Charles's example of temporary, tiny temporary--

CHARLES FRIED: But what about leaving aside the example of laws which unconstitutionally constrain the president?

FRITZ SCHWARZ: Well, surely the torture one, which is the one on the subject--

FRITZ SCHWARZ: --does not do that.

CHARLES FRIED: Fine. but-- if there is a law which unconstitutionally constrains the president, surely he can lay that aside for as long as that law is on the books.

FRITZ SCHWARZ: You know, Charles, I would pick up your analogy about the people who are asked a question and-- they say "I'm not gonna answer it." If they truly believe and they think they can prevail that something's unconstitutional, they ought to first, they ought to veto the law. Bush didn't do that. He would sign these laws and then put a signing statement saying, "I'm not gonna pay attention to them."

CHARLES FRIED: So that's pretty open.

FRITZ SCHWARZ: Secondly, they should act to-- they should go to court or something to challenge the law.

CHARLES FRIED: Well, one thing that this administration has not done and even Nixon did not do-- was when there is an adjudication by the Supreme Court that, no, you do not have this power on this occasion that they have defied that, nobody-- none of these presidents-- and including this president, have not said the Supreme Court doesn't have the last word. And that's a very-- look, that's what drove Nixon out of office.

FRITZ SCHWARZ: Of course, they've tried to keep cases away from the Supreme Court. Just the-- just the minute it's about to get there, they send someone back to Saudi Arabia or they take them out of the brig and put them in a criminal case.

CHARLES FRIED: Well, you're an old litigator. You know that's what you do.

BILL MOYERS: Let me ask you--

FRITZ SCHWARZ: But it's a position of weakness, too, Charles.

CHARLES FRIED: Yes.

BILL MOYERS: On the issue of torture, if you believed that torture leads to important information that could save lives, would you want it stopped?

FRITZ SCHWARZ: Let Charles answer that first.

BILL MOYERS: Oh, all right.

CHARLES FRIED: I would want it stopped. But as-- you're-- you know, I'm under oath here, so to speak, the oath of public television. If it succeeded, you know, we-- you know, if-- treason succeeds, and I dare call it treason-- well, if it succeeded-- I'd have an awful lot of trouble with that. But I think my answer would still be "no."

BILL MOYERS: --you not want it--

CHARLES FRIED: I would want it stopped because of what it does to the torturer and to the person who instructs the torturer-- which is us.

BILL MOYERS: Why did you ask him to answer it first?

FRITZ SCHWARZ: Because I kind of thought he being a reasonable guy was going to come out that way. And that's pretty much where I would come out, too. And I think the thing I would add to it is that it's-- it-- hurts our reputation so badly. I mean, Shakespeare has that wonderful line about he who-- I'm paraphrasing it 'cause I don't remember it perfectly. But he who steals my purse, steals trash. But he who takes my good name takes everything. And what we've allowed to happen is, through foolish acts and foolish positions, we've allowed our wonderful reputation to be severely diminished.

BILL MOYERS: Well, it wasn't so wonderful after the Church hearings.

FRITZ SCHWARZ: Yeah, but the fact that this country had the courage to do those hearings and make them public I think helped-- and Bill Colby, who was head of the CIA-- or had been until the last two months of our work, he said it actually strengthened the intelligence community to have these things brought out.

BILL MOYERS: The president has acknowledged that he authorized this electronic surveillance and did so without asking Congress. But he said Congress had already approved his taking military action against al-Qaeda and that that approval of Congress for military action against al-Qaeda and the inherent powers of the presidency-- made his claim necessary--

CHARLES FRIED: A very plausible argument which I saw made most powerfully by that great Republican publicist Cass Sunstein after, you know Cass.

CHARLES FRIED: Probably heard him on--

BILL MOYERS: --Chicago--

CHARLES FRIED: Big Democrat. Referring to the standard power of the commander-in-chief to control and order signals intelligence. Goes back to George Washington.

BILL MOYERS: Signals intelligence is?

CHARLES FRIED: Is communications with-- potential communications with-- the enemy.

FRITZ SCHWARZ: You know, I - would have used about the argument based on the authorization for military force, I would have used the word that it's trivially embarrassing for the government to make that argument. First place, the language doesn't support it. The language is focused on doing things in Afghanistan-- particularly.

Secondly, the history utterly rejects it because they went to the Congress and asked the Congress to give them powers at home under that resolution. And the Congress refused to do so. So on the-- first argument the administration makes, the authorization of military force, I think it's an embarrassingly bad argument.

On the second one, that the president has some inherent power, I think it's clear that the Congress has the stronger-- the greater power under the Constitution, if it chooses to act. Congress often doesn't choose to act. And in that case, the president's power are greater. But as Justice Jackson said in his really famous opinion, the Youngstown case, when Congress has acted and the president then seeks to go beyond the rule of Congress, that-- the president's power's at its weakest-

BILL MOYERS: Here's what I see, as a journalist whose job is trying to connect the dots. The president makes the claim, "Congress gave me the authority to attack al-Qaeda and I can, therefore, justify all these secret acts and decisions because I'm the commander-in-chief fighting a military enemy."

Now he wants to then apply the same logic of the commander-in-chief to military strikes against Iran at his pleasure. And connecting the dots, that's what I see developing this very week.

FRITZ SCHWARZ: It is a danger. And actually there's a-- there's a conservative senator from the Republican Party from South Carolina, Lindsey Graham. And he has said they-- the Bush administration having made that argument about the Afghanistan authorization to use military force is going to force us, the Congress, to be more careful in the future. So that-- I mean, he didn't think the argument was any good-- the one that the Bush administration has made. But I hope this time they will be more careful.

BILL MOYERS: Don't you see the momentum leading to--

FRITZ SCHWARZ: Sure, sure.

BILL MOYERS: --military strikes against-- Iran--

BILL MOYERS: --on the theory that-- on the basis that Iran is a terrorist state, which, you know, I'm not-- I don't doubt that it sponsors terrorism.

CHARLES FRIED: The Revolutionary Guard.

BILL MOYERS: Yeah, the Revolutionary Guard.

FRITZ SCHWARZ: One-- once bit, twice shy. You know, once we've been bit, we should be-- ought to be really shy about doing something that takes us down the same path.

CHARLES FRIED: Fool me once, shame on you. Fool me twice-

FRITZ SCHWARZ: All those work.

BILL MOYERS: But unless Congress stands up and the press stands up, who is there to be the check and balance?

FRITZ SCHWARZ: Yes.

FRITZ SCHWARZ: --the public, ultimately--

CHARLES FRIED: Jay Leno.

BILL MOYERS: Jay Leno.

FRITZ SCHWARZ: The public can't be a good check and balance unless the truth is told to them, unless they know what's really going on.

BILL MOYERS: And you only learn the truth after the fact on the Church Committee.

FRITZ SCHWARZ: Yeah.

BILL MOYERS: Last question. What-- summing up, what is it that most concerns you about all this right now?

FRITZ SCHWARZ: Well, I think the most important thing is the claim the president can break the law. And the second thing that concerns me most is that what the Cheney-Bush administration has done has hurt us in our battle to defeat Bin Laden and his allies.

CHARLES FRIED: And what concerns me is, first of all, the greater partisanship that this has created. It was an opportunity for less partisanship. And it's created more partisanship with more extreme and unreasonable positions on both ends.

And also, that there will be a reaction just as there was after Watergate, which will be excessive and harmful to us, that what Bush-Cheney-Addington has done is to diminish the president's powers rather than increase them in practice. Because they will have produced such a reaction, that arguments, which in appropriate circumstances set by the right people in the right way, will now be treated as unacceptable. And that's a great shame.

BILL MOYERS: Charles Fried, Fritz Schwarz, Thank you very much for joining me on THE JOURNAL.

FRITZ SCHWARZ: This has been fun.

CHARLES FRIED: Thank you.

BARBARA JORDAN: My faith in the Constitution is whole, it is complete, it is total and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

BILL MOYERS: As we just heard, once a president claims extraordinary powers, free of checks and balances, the sky's the limit. President Bush launched a preemptive invasion of another country claiming superior intelligence and asked us to take his word for it; the case proved to be fictional. But four and a half years later, that war continues, no end in sight. Now he is threatening military action against another country, Iran, invoking the war on terror. This week the administration imposed sweeping new sanctions on Iran to the sound of rattling sabres.

But also, this week, the congressional budget office said spending on the first war, the war in Iraq could eventually cost almost two trillion dollars compared to the administration's original estimate of no more than 50 billion. The president now says he needs another 200 billion and analysts say some of these funds conceivably can be used for air strikes against Iran.

All of which reminds me of the famous French naturalist, Henri Fabre, who was intrigued by a species of worms, known as processional caterpillars, because they march single file in long unbroken lines. One day he came upon a line of them in the forest. He gathered them up, put them around the rim of a flower pot, and then started them walking. Round and round they went, like a tiny merry-go-round, hour after hour. They kept going for days and even though food was near at hand, they never strayed from their well-worn path. In the end, every one of them starved to death on end endless march to nowhere.

That's it for the JOURNAL. On our web site at pbs.org, you can investigate the growth of secret government, weigh in on the limits of presidential power, revisit the history of civil liberties in wartime, and join the talk on torture.

See you next week. I'm Bill Moyers.

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