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The Bush Legal Legacy
December 12, 2008
In his discussion with Bill Moyers, constitutional lawyer and popular blogger Glenn Greenwald laid out what he would like to see President Obama do to counteract the Bush administration's legal legacy:
"I think it's vital that he renounce the core- theories that have made the Bush presidency so lawless...I think he needs to say that he doesn't intend to view himself as being above the rule of law, that he intends to be faithful to the vision and design of the founders that the President, like everybody else, is subjected to the rule of law and to the laws that the American people enact through their representatives in Congress."
THE JOURNAL has covered the administration's relationship to the rule of law both on-air and online. Below find out more about the growth of executive privilege, presidential signing statements, the torture debate, government secrecy and freedom of information, civil liberties in war time, FISA and secret courts.

Executive Power and Signing Statements

Many on both sides of the political spectrum view the growth of executive power under the Bush administration as unprecedented — and unwarranted. In October 2007, constitutional law professor Charles Fried and lawyer and author Fritz Schwarz talked with Bill Moyers about the growing power of the executive branch:

"What President Bush is saying is that the president has powers, constitutional powers, which Congress may not take away from him. So that if Congress purports to do that, those attempts are unconstitutional. And as we have known since the beginning of our Constitution, since the time of John Marshall, the Constitution is the supreme law." --Charles Fried (Watch the full interview)

Constitutional scholar Bruce Fein, who wrote the first article of impeachment against President Bill Clinton, and THE NATION's John Nichols, author of THE GENIUS OF IMPEACHMENT maintain that the abuse of executive power has created grounds for impeachment, aided by a complacent Congress:

"The founding fathers expected an executive who tried to overreach and expected the executive would be hampered and curtailed by the legislative branch... They [Congress] have basically renounced walked away from their responsibility to oversee and check." Bruce Fein (Watch the full interview)
Of course, many of the expanded executive powers were put into practice in the wake of 9/11 but that hasn't satisfied many constitutional scholars. In September, 2007 former head of the Office of Legal Counsel under George W. Bush, Jack L. Goldsmith, discussed the Administration's expanded view of executive power, which he documented in his book, THE TERROR PRESIDENCY:
"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." (Watch the full interview and read a book excerpt.)
Among the most criticized tools of executive power utilized by President Bush are signing statements — a written comment about how the President interprets the bill and how he plans to execute it, or not. What are they? How do they work? Find out in our primer.

Torture and Detention

In his tenure in the Office of Legal Counsel Jack Goldsmith found himself in the difficult position of offering opinions on the legality and constitutionality of interrogation techniques and detention practices. Those controversial techniques and the legal and political ramifications of them have been the subject of several JOURNAL reports.

British law professor Philippe Sands, author of TORTURE TEAM, talked about the approval of coercive interrogation by high-level American officials:

It started with a few bad eggs. The administration has talked about a few bad eggs. I don't think the bad eggs are at the bottom. I think the bad eggs are at the top. And what they did was open a door which allowed the migration of abuse, of cruelty and torture to other parts of the world in ways that I think the United States will be struggling to contain for many years to come. (Watch the full interview.)
Jane Mayer, author of THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS, commented on the 2008 House hearings into torture technique and the administration of Guantanamo: "This isn't really so much about fault. It's a question, seven years later, if what they did in those panicky moments right after 9/11 were the right choices and whether they're still the right choices." (Watch the full interview.)

Civil Liberties in Wartime

Domestic Spying, The Church Committee and FISA

Historians know that the growth of executive power and lessening of civil liberties during war time is nothing new in American history. As Glenn Greenwald remarked in his conversation with Bill Moyers :

"It's certainly the case that Presidents in the past have seized upon national security crises in order to expand their power beyond what the Constitution prescribes...The founders predicted, in fact, that the greatest threat to our Constitutional framework would come from leaders who exploit the fears that Americans have of external threats...The difference, though, is that whereas prior Presidents have, in individual cases, violated the law or violated the Constitution in order to respond to these sorts of crises, what we have, in the last eight years, is not merely a case of individual and isolated law breaking. It's a declaration of war on the whole idea of a law itself, on the idea that our political leaders are constrained in any way by the limitations of the American people imposed through our Congress. The rule of law has essentially ceased to exist."
Because of preceived abuses of executive power, the post-Watergate 1975 Church Committee hearings led to changes in the way the CIA, FBI and NSA could gather intelligence and eventually to the Foreign Intelligence Surveillance Act (FISA) of 1978, which established a secret FISA court responsible for issuing warrants for domestic wiretapping activity. Conservatives and liberals alike have been troubled by the Bush administrations uses of domestic surveillance, especially the practice of "warrantless wiretapping" which contravened FISA. The wiretapping practices of the administration have led to Congressional hearings, legal challenges and a controversial post-dated immunity for Telecoms who participated. In 2007 former chief counsel of the Church Committee Frederick Schwarz, told Bill Moyers that the most fundamental lessons learned from the Committee were being ignored by the current administration's warrentless wiretapping program: "When you start small, you go big...When you start in a way that seems legitimate, it inevitably goes too far." (Watch the full interview.)
Government Secrecy and Freedom of Information

Conservatives and liberals alike are also bothered by excessive government secrecy — and by almost any measure the Bush administration is the most secretive in years. The number of documents classified under the President has almost quadrupled from 5.8 million under Bill Clinton in 1996 to more than 20 million last year.
Related Media:
Jane Mayer on Torture
Bill Moyers gets perspective from journalist Jane Mayer on the debate over whether the U.S. sanctioned torture to prosecute the war on terror. Mayer's recent book, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS, documents the war on terror and the struggle over whether the president should have limitless power to wage it. (July 25, 2008)

Philippe Sands
International lawyer and law professor Philippe Sands, author of TORTURE TEAM, talks about the approval of coercive interrogation by high-level American officials. (May 9, 2008)

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. (October 26, 2007)

Jack L. Goldsmith
Former head of the Office of Legal Counsel under George W. Bush, Jack L. Goldsmith, discusses the Administration's expanded view of executive power. (September 9, 2007)

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. (September 7, 2007)

Tough Talk on Impeachment
BILL MOYERS JOURNAL explores the talk of impeachment with Constitutional scholar Bruce Fein, who wrote the first article of impeachment against President Bill Clinton, and THE NATION's John Nichols, author of THE GENIUS OF IMPEACHMENT. (July 13, 2007)

Josh Marshall on the Attorney Firings
Popular political blogger Josh Marshall from gives the Journal his perspective on the role of politics in the recent firings of federal prosecutors. (April 27, 2007)

Buying the War
How did the mainstream media get it so wrong in the lead up to the Iraq War? (April 25, 2007)

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

YouTubeScott Horton on NOW
David Brancaccio spoke with Scott Horton about the legal underpinnings of the War on Terror and American detention policy. Scott Horton is a New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict. Horton lectures at Columbia Law School.

Guest photos by Robin Holland

Published December 12, 2008

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