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Cheney's Law [home page]

Bradford Berenson

berenson

From January 2001 to January 2003, Berenson served as an associate White House counsel under Alberto Gonzales. He recounts some of the significant events and decisions during his time there, for example, why White House lawyers decided to usurp the normal interagency process and have the president sign an executive order so that suspected terrorists would be tried in military tribunals. This is the edited transcript of an interview conducted on Aug. 9, 2007.

Give me a little bit of the background on Judge [Alberto] Gonzales. Who was he?

He obviously had been a longtime associate and friend of then-Gov. [George W.] Bush in Texas. ... There was a close relationship, professional and personal, between the two men. It often felt to me almost like a big brother-little brother relationship. I think President Bush felt very proud of Judge Gonzales and his achievements. Judge Gonzales felt very grateful to President Bush for the opportunities that the president had given him professionally. I think there was a lot of mutual affection there as well. ...

He did a very interesting thing when he first came up to Washington. ... He brought one person with him from Texas and staffed the entire White House Counsel's office, apart from that one person, with individuals that he did not know and had no prior relationship with. He did that because he perceived that he and the president were going to need expertise in some areas that he and the circle of lawyers with whom he was close in Texas didn't have. I gave him then -- and still do -- enormous credit for the perspicacity that he had in appreciating that even though it would be less comfortable for him to be surrounded by strangers that he ... and the president might ultimately be better served by people who had expertise in federal agency law, in the federal courts, in the Supreme Court, in the Office of Legal Counsel [OLC], in congressional relations and congressional oversight, in executive privilege, in white-collar crime. The list goes on. ...

Who was David Addington?

David Addington was the counsel to the vice president. ... He started out his legal career in public service, I believe in the CIA general counsel's office, and then he had worked on Capitol Hill. He had worked in the Department of Defense. Throughout his career, the political figure he had served had primarily been Vice President [Dick] Cheney. So there was an extraordinary degree of trust and a close relationship there as well.

David Addington is an extremely intelligent, extremely forceful individual who has very firmly held views and very well-grounded views on a lot of issues relating to the presidency, the vice presidency, the executive branch and separation of powers. As events played out through the administration, those views, coupled with David's very forceful and persuasive personality, ended up having a significant impact on the way things played out.

How so and why? What was he bringing to the table?

... David was one of those individuals who, by virtue of decades of experience in Washington and a lot of deep thought and study, had very firm views on issues that others were just beginning to develop views on. So he came to his job as counsel to the vice president with a very firm view about the importance of executive power, particularly in the realm of national security and protecting the country from external threats.

I think he came to the job with a fairly dim view of the competencies of the Congress, again, particularly in the realm of foreign affairs and national security. He had a strong view of the unitary executive, which has long been an article of faith among judicial conservatives, which essentially holds that ... the Constitution, through the vesting clause in Article II, makes the president the sole head of the executive branch of government and gives him essentially plenary authority to control the conduct and activities and choices made in the executive branch. ...

What part of this was his belief system and his theory, and what part of it was the vice president's? ...

I didn't have any direct window into his relationship with the vice president, but it was always my impression that there wasn't a sliver of daylight between the two of them on these issues. ...

[What was the relationship between the people in the administration who had been around Washington for a while and those who came in from Texas?] How did that balance work pre-9/11 and then post-9/11?

... I would say in the early going in the administration, which, of course, includes the immediate post-9/11 period, people like David Addington, like the vice president, like Tim Flanigan, who was deputy counsel to the president, like Andy Card, who was the chief of staff, like Condi Rice, who was the national security adviser -- people who had more Washington experience and more deeply held views about how the powers of the presidency should be exercised in various areas did tend to have a disproportionate influence on events and on the decisions that got made. ...

Who is John Yoo, and what position did he find himself in?

... John Yoo was, at the beginning of the administration, an extremely well-respected law professor from Boalt Hall, the University of California at Berkeley's law school, who had done a lot of pathbreaking work on war powers and separation of powers and national security issues. He was a theorist of executive power, particularly in the realm of national security and foreign affairs, [who] had, even as a quite young professor, quite a reputation in that field. He was brought in to be a deputy in the Office of Legal Counsel at a time when no one knew just how important his expertise on those issues were going to prove to be.

What was the relationship between OLC and the White House as compared to the OLC's relationship with [then-Attorney General John] Ashcroft? ...

There is always in every administration an important and close relationship between the Office of Legal Counsel and the Justice Department and the White House Counsel's office. The role of the White House counsel is essentially to serve as inside counsel to the president, to handle the funneling of legal advice to the president, to manage the decision-making process on those legal issues that centers in the Oval Office, and to supervise the work of the politically appointed lawyers throughout the rest of the government.

The Office of Legal Counsel essentially serves as outside counsel to the presidency; that is, where a subject needs to be studied deeply and an opinion needs to be rendered after very careful consideration, typically in written form, it's the Office of Legal Counsel that does that. ...

But in this White House, was there an even closer relationship between the White House and OLC?

There was for a couple of reasons. The first is that the Senate gave General Ashcroft such a hard time during confirmation. ... The department had no attorney general for many months in the spring of 2001. When General Ashcroft was finally installed, he was installed in a politically weakened state because of the confirmation process, and power abhors a vacuum.

In General Ashcroft's absence, or even in the first months as he was just learning the job and recovering from that confirmation process, some of the subordinate units of the Department of Justice, particularly the Office of Legal Counsel, stepped up and filled that void to some extent, because the White House's need for advice was undiminished and couldn't wait for General Ashcroft to get confirmed or to get his sea legs under him. A pattern was established of more direct interaction between the White House Counsel's office and the Office of Legal Counsel than you might find typically.

There's one other important piece of this, which has to do with personnel. The Office of Legal Counsel assistant attorney general is one of the most sought-after legal positions in the executive branch, and there was a battle royale over who would ultimately get that job early in the administration. The victor in that battle emerged as Jay Bybee, who was himself, I believe, a law professor, but more importantly than that was very close to Tim Flanigan, who was the deputy White House counsel. The two of them knew each other and liked each other and respected each other. There was a personal closeness that also helped to facilitate that institutional closeness over time.

[Was there a connection between Addington and the OLC?]

Not in the early going. I don't remember.

Post-9/11?

Yes, that developed after 9/11, and it developed because decisions had to be made so fast that they were typically made by a small group working closely together that included the counsel to the president, the deputy counsel to the president, the counsel to the vice president, and then people like John Yoo and Patrick Philbin in the Office of Legal Counsel. ...

Did 9/11 create a different sort of power structure? How were decisions made?

What happens in the aftermath of a bona fide national emergency such as that caused by the attacks of 9/11 is that power rushes into the center. ... The president personally controls the executive branch and is capable of making decisions and directing that actions be taken much more quickly than the bureaucracy is when it's following its normal processes -- the kind of interagency deliberation over policy options. ... Those kinds of processes work very well in ordinary times and are almost totally dysfunctional in responding to a genuine crisis. ...

Tell me a little bit about the first White House Counsel's office meeting after the administration took office. Who was there, and what was laid out?

... Very early on Judge Gonzales outlined for the office what the president's priorities were for the counsel's office, and there were really two principal priorities. One was the speedy appointment of top-notch judges who were practitioners of judicial restraint and being ready to appoint a justice of the Supreme Court, should that become necessary. The other was, as Judge Gonzales related to us, to leave the presidency in better shape than he found it; that is, to try to restore some of the powers and privileges and prerogatives of the presidency, along with restoring its honor and reputation in the wake of eight years under President Clinton in which the presidency had taken a real beating, both legally and reputationally.

So this idea of executive power is on the table immediately?

It's on the table immediately. The vice president certainly, and a lot of the lawyers that were working in the White House Counsel's office, had strong beliefs about the importance of executive power and separation of powers and were very interested, not for the sake of George W. Bush the person, but for the sake of the institution of the presidency. ...

This doesn't sound like something that Gonzales would have come from Texas with. Is this laying out a strategy that came from the vice president's office?

I don't know. The way it was relayed to us, it came straight from the president himself. ...

One of the first things that happens after 9/11 is going to Congress for the authorization for the use of military force [AUMF]. Can you take us into that a bit, about how that was designed, what the goals were?

Tim Flanigan, the deputy counsel to the president, along with Judge Gonzales himself were really the two lawyers in the White House most involved in working with the Congress to get the authorization for the use of military force. I was not personally involved in that to any great degree. ...

All I can really tell you is that everybody understood, as the president had articulated really from 9/11 itself on, that we were at war; that part of our nation's response to these attacks was going to have to be military in nature; that the president would be strengthened in formulating and executing the military response if he had the support of Congress; and that a resolution to that effect would be a good thing for the country. ...

Meanwhile John Yoo is back at OLC starting to write up memos that to some extent will supersede the AUMF. ... Can you tell us a little bit about that, leading up to his Sept. 25 memo?

... The overall mind-set in the days right after 9/11 was, we need to lay out for the president every single tool in his toolbox. ... So there were efforts to flesh out the authorities he had under various statutes to respond in an emergency militarily, economically and in other realms. At the same time there were efforts to define the scope of his powers under the Constitution so that where there was no statutory authority, or even arguably where there was contrary statutory authority, the president would know what he could lawfully do.

Also very early on the issue of military tribunals is coming up. ... Are you involved in any of those early discussions?

Yes, all of them. Very early after 9/11 -- maybe not in the first week but probably in the second -- lawyers in the White House began to consider the question of what we're going to do when we capture Al Qaeda terrorists. ...

It turned out that there was a fairly traditional, well-established answer, and that answer was military detention, the detention of an enemy combatant or, under certain circumstances, a Geneva-type POW. That is, when someone is fighting against you militarily, you are not obligated to provide him with a lawyer and charge him with a crime. For millennia, nations at war have simply captured and detained their adversaries for the duration of the conflict to keep them away from combat in the hope that that will help bring the war to a faster conclusion. ... You are permitted, at least in certain circumstances, to interrogate and try to get operational intelligence from your enemies.

A concomitant of that answer was that war crimes could be prosecuted not only in courts-martial or not only as civilian crimes but also in specialized military tribunals, be they domestic military tribunals or be they international war crimes tribunals like we've seen for Rwanda or the former Yugoslavia.

So the counsel to the president directed that a task force be set up and chaired by the U.S. war crimes ambassador, Pierre Prosper, ... and an interagency process was established that was chaired by the State Department. It included participation from the Department of Defense, the Department of Justice and the White House. Its mission was to figure out what, if anything, the president needed to do to ensure that he had the maximum number of options available for meting out justice to a suspected terrorist whom we might capture. That group considered the entire range of alternatives, and military commissions were among the alternatives that were considered right from the start.

We interviewed Prosper, and the way it's been reported is there seems to have been two tracks going on; that while this interagency group was coming up with proposals and delivering it to the NSC [National Security Council], meanwhile ... military commissions were decided upon on the side almost independent of the interagency group.

That was not exactly my perception of how it worked. I think the interagency group was the one and only track that this was going down for a period of some weeks. But because there was a perception that the interagency group was moving too slowly and was not acting decisively enough in the circumstances of crisis in which we found ourselves, I think a decision was made in the White House at that point to domesticate the process, take it out of the hands of the interagency and run it again as a White House staff-led initiative -- really just another example of the phenomenon I was describing before, where the need for speed and efficiency causes power to rush into the center.

And who made those decisions?

I'm not certain, but ... I think it was Judge Gonzales and Tim Flanigan who decided that the interagency process was not serving the president of the country well enough because it was too slow and decided to simply act.

... What was the general feeling of the vice president's office and their involvement in this decision?

Again, I don't know absolutely for certain what the involvement of the vice president's office was in the decision to essentially pre-empt the interagency process and have the president issue his military order on Nov. 13. I do know that there was a general perception among the president's legal staff and the vice president's legal staff that dealt with the NSC that the normal NSC interagency process was cumbersome and ponderous and tended to produce kind of a least-common-denominator, safe approach in addition to being slow. ... That frustration was magnified probably 10 times in the immediate aftermath of 9/11 when everybody felt that we were scrambling to prevent another attack of that magnitude that could occur any day. ...

[So how did the president's Nov. 13 order come about?]

... I don't know exactly how the first draft of the military order got prepared or who prepared it. I suspect that it involved collaboration between Tim Flanigan, the deputy counsel for the president, David Addington, the counsel to the vice president, and perhaps John Yoo or Patrick Philbin from the Department of Justice's Office of Legal Counsel. But I don't really know who actually put pen to paper for the initial draft.

I do know that it was modeled very, very closely on the order that Franklin Delano Roosevelt had used in 1942 to create military commissions to try the Nazi saboteurs who had come ashore on Long Island intending to do the very kind of damage that Al Qaeda, in fact, did decades later on Sept. 11.

The reason that FDR's order was looked to as the model for the president's order is, first, because it was an existing precedent from another president, and that always helps to have a precedent on your side. But even more importantly that that, the lawfulness of that order and the jurisdiction of those military commissions had been tested in court in 1942 and had gone all the way up to the U.S. Supreme Court, which [in Ex parte Quirin] had unanimously affirmed its lawfulness and unanimously affirmed the power of those military commissions to try the Nazi saboteurs, which included at least one and maybe two American citizens.

There was an existing precedent whose lawfulness had already been validated by the Supreme Court unanimously. For a lawyer, it doesn't get much better than that. So I think there was an effort made to hew as closely to the FDR precedent as we could to reduce and hopefully eliminate the legal risks associated with issuing that order. As we now know, that turned out to be a forlorn and naive hope, but that was the thinking at the time.

Expand on that. How was it defined eventually as being somewhat naive?

The Supreme Court in Hamdan v. Rumsfeld struck down the military order of Nov. 13, 2001, as being beyond the president's powers both because of some domestic statutory restraints in the Uniform Code of Military Justice and because of common Article III of the Geneva Conventions.

In November of 2001 nobody imagined a ruling like Hamdan could or would ever come down. But the order was, in fact, invalidated by our Supreme Court after years of litigation and, probably more importantly, years and years of social, cultural and political warfare against the administration's approach to the response to 9/11, which had created an environment very different than any of us could have imagined in that first year after the attacks. ...

[When the president signs the order on Nov. 13], [NSC legal adviser John] Bellinger, [then-Secretary of State Colin] Powell and [then-National Security Adviser Condoleezza] Rice still think that Prosper's group is in charge. Take us into that, how NSC and the State Department were cut out and the anger that that created.

I was actually the person, along with the deputy staff secretary, that brought the final order into the Oval Office for the president's signature. At the time I did that, I had absolutely no idea that the national security adviser and her legal counsel and the secretary of state were unaware of this order or had been cut out of the process. I learned that in The New York Times years later.

How could that be?

The White House, in an atmosphere of war, was very compartmentalized in terms of the sharing of information. People knew what they needed to know at a given time and did not question what they didn't know or what they were told they didn't have to have access to. ...

So take us a little more into the process. ... You're given the order, and you're the one that talks it over with [deputy staff secretary] Stuart Bowen?

Yes. I don't know what happened with it before me. I mean, I saw drafts of it. I commented on it, edited drafts, worked with Tim Flanigan on that, but my memory is a little hazy of how it is that the final order got in my hand for signature by the president. Normally the Office of Legal Counsel at the Justice Department would have had to sign off as to form and legality, so it would have been reviewed by them. Normally the Office of Management and Budget would run a process with an executive order where the affected departments and agencies provided input. That's in addition to the staffing process inside the White House. But I either don't know or don't remember what those processes were and exactly what route this order traveled before it got into my hands.

What I remember is standing in the staff secretary's office in the West Wing with Stuart Bowen, with final copies of the military order for the president to sign and being aware that he was about to leave the West Wing for some trip. In fact, I think we could hear the helicopter landing on the lawn as we approached the Oval Office.

The urgency that was felt and perceived at that time -- which it's hard for people now to recover and understand -- was such that the White House staff and the people involved in this did not want to wait for the president to get back from whatever one- or two-day trip he was going on. They felt it was important that the authority to create these commissions exist immediately. So Stuart and I went into the Oval Office, brought the order to the president. He quickly reviewed it and put his signature on it and then headed off down the hallway with Andy Card and a couple of others to get on the helicopter.

Was the vice president in the room at that point?

I don't remember.

There's been some stories out there that Bowen said, "Well, wait a minute; we've got to go through the normal system here," and at that point it was explained to him that the president was waiting.

Yes. I don't know about that. I don't remember Stuart voicing any particular objection to me about process. ... I also don't know who was responsible for briefing the president on it, but when I walked into the Oval Office with the military order, I did not go in expecting to have to brief the president or answer questions from him about it. My expectation was that he was already briefed on the order, already understood it, and the order was simply needing his signature at that point.

And the blowback from this? There are stories that Powell was on the phone immediately to Prosper going, "What the hell is this all about?," and Bellinger was very angry. What was the blowback?

I was personally insulated from the internal blowback. ... I was much more attuned to the external blowback, the external reaction from legal academia, from the international community, etc., the things that were going to shape the larger sociopolitical environment in which this order was received going forward.

And what was that?

Much more hostile than expected. We knew that there was a potential for this to be met with some skepticism or some negative reaction, but military commissions had been used in the United States in circumstances like these going back as far as the Revolutionary War. George Washington used them to try British spies. So I think it is safe to say that we underestimated the extent to which the modern legal culture and civil rights and human rights culture had changed the landscape. …

Do you remember ... the way people within the White House viewed the reaction to the decision?

I don't. I don't think people were terribly concerned about it at first because we felt we were on rock-solid legal ground with the Supreme Court decision from 1942 and the close modeling of the military order on President Roosevelt's order.

Negative reaction among commentators or legal scholars or institutions abroad were not of much concern. The overall environment in those first few months after 9/11 is we have to do what's right, we have to do what's legal, we have to do what's necessary to protect the country; and if there are PR problems that arise out of that, well, the PR people will deal with that. That's not a secondary but a tertiary consideration.

... Looking back at it now, how do you view the way the White House dealt with those issues? ...

Well, let me take it in two parts. With the benefit of hindsight, it's clear that the administration should have engaged much more vigorously than it did in the public debate over the propriety of steps like the creation of military commissions. Abandoning the field of public discourse to the administration's critics ended up having a seriously negative effect on the overall viability of these steps when they finally made their way into the courts. I believe it was a mistake not to engage much more aggressively at the time in the public debate over these issues.

Internal debate is something different. The president is the commander in chief. The president is the sole chief executive of the nation. Everybody underneath him -- his Cabinet secretaries, the sub-Cabinet, his staff -- works for him. They serve at his pleasure and are subject to removal by him any time. He is perfectly entitled to make a decision with which some, many or all of his senior advisers disagree. ...

In the summer of '02 you have some worries along with [Solicitor General] Ted Olson and other folks that the Supreme Court's views of some of these executive power decisions [are] not going to be what the administration had expected, especially looking at the [cases of U.S. citizens detained as enemy combatants]. ... Take me into your view. ...

... It is the case that as litigation got under way over some of these detainee issues, I became concerned about our ultimate chances in the Supreme Court, which is where everybody knew these questions were going to end up. I had clerked at the Supreme Court myself after law school and had clerked for Justice [Anthony] Kennedy, who was really the Court's balance wheel on these issues as so many others. ... I believed that he would be deeply skeptical of particular steps taken in the war on terror that would have the effect of almost wholly excluding the courts or diminishing or eliminating the role of lawyers for people who did properly have access to the courts. My views on that were shared by some other people within the administration, including others who had clerked for Justice Kennedy.

It wasn't that we thought the administration's legal positions were wrong as an original matter. It was a predictive judgment about how they would fare in the courts. ...

But Addington accused you of surrendering executive power with making decisions like this or arguing this sort of argument?

Without attributing particular views to particular people, what I can say is that there was a prevailing attitude among the folks who ultimately would make the decisions on these issues that there were only two criteria that had to be met in order for a decision to be made and stuck with. One was that it be the most protective possible option for our citizens, and the other was that we, as the president's legal advisers, believe it to be lawful. If those are your only two criteria, then arguably predictions about the Court maybe viewing the legal issues different become irrelevant or close to it. ...

Gonzales was a decider, I would assume, in this situation. And his point of view on these issues?

I think Judge Gonzales was in many ways the pre-eminent decider on these issues. He was the lawyer who would most frequently discuss these issues with the president or with the vice president along with David Addington. And he is the one who would listen to the debates and hear the views on various sides and ultimately make a decision about what to recommend to the president.

He typically did not say very much. He kept his cards very close to the vest about how he was evaluating what he was hearing and ultimately about what he was going to say to the president. He was a lawyer's lawyer in maintaining very, very strict confidentiality about his own thoughts and about his communications with the president. ...

Signing statements: First time you heard of them, the way this administration thought of how to use them, and your overview on them?

I think that the controversy over signing statements is much ado about nothing. I think signing statements are a traditional feature of presidential signatures on legislation. President Bush is not the first person to use them by any stretch. It's bipartisan. I think it's a matter of good government because it notifies the Congress and the public where the president thinks the statute has overstepped and could be unconstitutional as applied.

It's ridiculous to think that the president's only option when faced with a 300-page bill that might contain two or three petty provisions that in some way transgress an unknown part of the Constitution is to veto the entire bill. That's preposterous. It's never been done that way. It would be completely impractical to do it that way.

So issuing a signing statement saying, "I'm signing a legislation; I think it's constitutional as a whole; it's a good idea; we're going to go forward and do it, but be on notice that in these two or three respects, the legislation might be unconstitutional as applied, and I'm going to interpret it and apply it as the chief executive in a manner that I believe constitutional," strikes me as totally unexceptionable. And I think that the effort to fit that into a storyline of radically expanded or aggrandized executive power isn't totally fair on that issue. ...

After all this is over, your overview of this question of executive power? ... How do you look at it now? ...

I remain as convinced as ever in the importance of a vigorous executive, particularly for protecting the country against foreign attack and safeguarding our interests abroad, both with allies and adversaries. I think the executive is just institutionally much better suited to handle our external relations than the Congress is, and the framers of the Constitution were very clear that they understood it the same way. So I have undiminished enthusiasm for the importance of protecting the powers of the presidency for all occupants of that office now and in the future, Republican and Democrat.

The wisdom I think I've gained through the past few years is that while vigorously protecting all of those powers and prerogatives, one doesn't have to always use them. That is, sometimes discretion is the better part of valor, and there are circumstances where even though it is possible to do something constitutionally under Article II, as a matter of practical wisdom, as a matter of policy, it may be better not to. ...

And as far as congressional arguments that its oversight has been minimalized?

I don't honestly think Congress is any weaker today than it was six or eight years ago. The notion that somehow they've been rendered impotent in all this strikes me as implausible. What we have seen is the normal combat of separation of powers in a highly charged setting. This kind of combat goes on all the time between the branches in the most placid and normal times. But when the stakes are this large, both as a matter of policy and as a matter of politics, that combat comes more out into the open. It's more visible. The rhetoric gets more heated.

But on the whole, I think each branch has done what you would expect it to do and frankly what you would want it to do, and the synthesis that emerges from that dialogue often represents good public policy for the country. ...

[How well did you know former Assistant Attorney General Jack Goldsmith and David Addington?]

I know Goldsmith a lot better than I know Addington. Addington I worked with for two years in the White House, but Goldsmith and I have been friends for 20 years probably, or close to it.

The one thing that David Addington and Jack Goldsmith have in common is that they're both very, very smart and very, very stubborn. But they're very different personalities. Goldsmith is the affable scholar, the slightly rumpled, friendly, maybe slightly forgetful figure who's most at home with musty old books and some classical music in the background. David Addington is much more the Washington bare-knuckled brawler, the inside man who knows how to fight and get his way by pulling on the levers of government. So Addington is a more openly tough and forceful kind of character than Goldsmith. ...

I can easily imagine David Addington being absolutely convinced of the necessity of something from a policy and national security perspective, believing that there's a good legal argument to justify it, and Jack Goldsmith simultaneously, while not questioning the policy or national security rationale, believing that the legal argument just doesn't stand up and being unwilling to give ground. That's very easy to imagine knowing these two guys. ... The styles are very different, but neither one of them would ever climb down from a firmly held view. ...

[What do you think about the charge that this administration operates in an excessively secret manner? Vice President Cheney was criticized for wanting to keep secret the records of whom his energy task force met with.]

Yes, it's a matter of principle and the public interest. The president needs to be able to get candid advice. That advice can only emerge from a process in which people feel free to float even really stupid ideas. If internal deliberations inside the administration are routinely subject not only to public view but to public view in the context of congressional efforts to weaken a president, either institutionally or politically from a partisan perspective, the quality of internal debate will be seriously degraded. ...

This is something that's been recognized again since the founding of the republic. People forget that the Constitutional Convention was itself conducted in total secrecy, and all members of the convention basically subscribed to an oath that they would never discuss the deliberations at the convention until after all of the participants had died. I don't think anybody felt that the work product of the Constitutional Convention was the poorer for that rule. Quite the contrary. ...

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posted october 16, 2007

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