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Transcript:

October 26, 2007

Bill Moyers talks with Charles Fried and Fritz Schwarz - Part 1

BILL MOYERS: So are matters that critical today? That's the question I'll put to my guests who know this issue inside and out.

Charles Fried served as the Solicitor General of the United States during the second term of President Reagan and over the years has argued scores of cases before the Supreme Court. He went on to be an associate justice at the Supreme Judicial Court of Massachusetts and now teaches constitutional law at Harvard Law School.

Among his several books is this new one: MODERN LIBERTY AND THE LIMITS OF GOVERNMENT: A CLAIM FOR INTELLECTUAL BOLDNESS IN THE DEFENSE OF INDIVIDUAL RIGHTS.

Frederick Schwarz was the chief counsel 30 years ago of that Senate Select Committee known as the Church Committee. He wrote its report. He went on to become corporate counsel for the City of New York and then partner in a leading law firm here.

He's now senior counsel at the Brennan Center for Justice at New York University School of Law. He and his colleague there, Aziz Huq, co-authored this recent book UNCHECKED AND UNBALANCED: PRESIDENTIAL POWER IN A TIME OF TERROR. Thanks to both of you for being with me. Fritz Schwarz, is the situation that dire today?

FRITZ SCHWARZ: Well, I think it's worse today because the Bush Administration, for the first time in American history, a sitting administration, takes the position that the president has the right to break the law. Now, that's been their position and that is their position. And they take it with respect for things like torture, where that's against the law and they took the position the president can authorize torture and has authorized torture.

And they take that position with respect to warrantless wiretapping where that is also against the law. And they took the position starting on the day after 9/11 that the president has the right to wiretap and do other forms of surveillance even though they're against the law.

BILL MOYERS: What was that famous sentence that Richard Nixon said to David Frost in those interviews many years ago?

FRITZ SCHWARZ: Yeah. He said in that interview, "If the president does it, that means it's not illegal." Now, Nixon and then when you go to the play, the FROST AND NIXON play in--

BILL MOYERS: Now in New York.

FRITZ SCHWARZ: --a good play -- the audience laughs. But it's a very serious matter. Nixon didn't say that until he left office. This administration says it when they're in office.

BILL MOYERS: When the president does it, that means it's not illegal. Is that what we're hearing now?

CHARLES FRIED: I don't think that's what we're hearing. I think Nixon was a disaster. I'm a rock-ribbed Republican and I never voted for him because he was a scoundrel, a bad character, and I knew we would be paying forever. And we're still paying for Nixon, among other things, FISA is one of the bad prices we're paying for Nixon.

BILL MOYERS: The-- Federal--

CHARLES FRIED: That's the wiretapping--

BILL MOYERS: Foreign Intelligence--

CHARLES FRIED: The Church Committee, which you did, was one of the unfortunate prices that we have to pay for Nixon and we're still paying. But, I don't think that's what President Bush is saying. 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.

Now, that doesn't mean that the president is right in his claims. And some of his claims are or may be wrong. But the principal point that the president may disregard acts of Congress is something which has been understood since the beginning of the republic.

BILL MOYERS: When you say that some of the president's decisions may be wrong, I think of what Fritz Schwarz wrote in his book. You know, he says the administration has violated international norms for treatment of detainees, created secret foreign prisons, employed extraordinary renditions to countries that torture, and claimed power to detain anyone as an enemy combatant, all, you say in your book, without regard to the Constitution. That's not just an-- occasional lapse, is it?

CHARLES FRIED: No. But we're not talking about regard for the Constitution. What I think Fritz and others — and they may on some occasions be successful in making the point — they have to demonstrate that these actions are in violation of the president's constitutional powers. That is to say, the powers which the law of the Constitution give him.

I'll give you an example which is perhaps a pathetic one. But it's much in our memories. You'll remember that President Clinton, at the end of his administration, issued some very dodgy pardons--

BILL MOYERS: Oh, yes.

CHARLES FRIED: --for very dodgy reasons. Now, Congress, in the Church-like frame of mind, could say, "Well, we got to put an end of this. And we've got to say that the president has got to turn over the pardon power to an independent agency, and he cannot issue a pardon which the agency does not authorize."

I can easily imagine a Republican Congress responding to Bill Clinton's pardons of Rich doing that. And it would be unconstitutional because the Constitution says the pardon powers the president and the president who would be entirely within his rights and acting lawfully if he totally disregarded it.

FRITZ SCHWARZ: Well, it's true. The pardon power is an example, one of the few examples of something that is given to the president clearly to act on his own. Charles would be right. That would be unconstitutional to try and stop the president from pardoning people.

The acts of, for example, authorizing torture, which this administration has done, is clearly something that is within Congress's power to prohibit. Congress has the power to issue rules governing the military and has the power to set forth what the law of nations are. Torture is something which is the military or NSA or CIA--

BILL MOYERS: National Security Agency.

FRITZ SCHWARZ: And I think, Charles, you would agree with me, that Congress does have the power to prohibit torture — constitutional power. And the president has no constitutional power to authorize torture, even though this administration has done that both by American forces and by rendering people to Egypt and Syria to torture people when we send them there.

CHARLES FRIED: Well, I feel very differently about torture than I do about warrantless eavesdropping.

BILL MOYERS: Why do you see a difference between those two?

CHARLES FRIED: Because torture is horrible, immoral, and causes the total meltdown of our human inhibitions and about how we treat each other. While the warrantless eavesdropping that I think was going on under the NSA and perhaps still is going on is absolutely necessary. The FISA restrictions on it, if they were restrictions, were mindless, foolish. And I don't think the American people care. They do no harm. They do a great deal of good.

BILL MOYERS: Let's stay on that for just a moment. Because it actually was only when I read - a column you wrote recently in THE BOSTON GLOBE that I understood what they're talking about when they come to this electronic surveillance. You wrote about how these computerized scans sort of impersonally roam cyberspace, looking for messages to and from the United States with certain keywords in them, certain e-mail addresses, certain patterns of rhythm to their ... and certain destinations.

And you say that then something in that message triggers further scrutiny. That it's impersonal. It's not Colonel Wiesler sitting upstairs in the attic, listening to the--

CHARLES FRIED: Listening to people making love.

BILL MOYERS: Yeah. Listening to the lives of others. And suddenly you say this is not something that we really should be concerned about. Because unless you're linked in some way with terrorists, you're not going to be affected. You know--

BILL MOYERS: Am I summing that up?

CHARLES FRIED: You remember the old G-men movies where the G-men were parked outside a mob funeral or a mob wedding and take down license numbers? And then they'd check them out and see. And those are the people they would then investigate. This is like that. Except, you know, the--

BILL MOYERS: --there's no G-men outside. There's a--

CHARLES FRIED: There's no G--

BILL MOYERS: --there's electronic--

CHARLES FRIED: --it's even less harmful. The idea is, in general, before you can investigate somebody, you have to have some kind of an inkling why you want to investigate.

BILL MOYERS: An inkling of a crime.

CHARLES FRIED: An inkling that something is not right. The cop on the beat, he notices that this person looks a little uncomfortable as he's walking. That door shouldn't be ajar. All kinds of things like that. Well, this is the electronic version of that. And to shut that down makes no sense. And you can't, of course, get a warrant for it.

BILL MOYERS: So, then if it's a big ear in the sky but it doesn't discriminate that carefully. What does the ordinary person out here in America have to worry about this electronic surveillance? Or do we? Do I have to worry about it? Do you have to worry about it?

CHARLES FRIED: I think you have to worry about it when you look, you know, on a Mapquest map, you zoom in. It-- at some point, the zooming in on the information that the big ear gives you becomes something which should be subject to further control. But at first, the first and second and maybe third-- sieving out of this information really can't be subject to a warrant because you don't quite know what you're looking at, yet. Warrants in that context are completely inadequate.

BILL MOYERS: Are you as benign about it as he is?

FRITZ SCHWARZ: No, I'm not because, number one, the law was in place. And the administration persuaded Congress on four separate occasions to amend FISA. And Congress did so when some technological argument was made Congress said, "That makes sense. We agree with you. We'll permit-- we'll change the statute." Four times they did that after 9/11.

BILL MOYERS: And FISA — just so the audience is with us. FISA was the law that was passed to require warrants--

FRITZ SCHWARZ: Yes.

BILL MOYERS: --before you do--

FRITZ SCHWARZ: Electronic surveillance.

BILL MOYERS: --electronic surveillance, right.

FRITZ SCHWARZ: Now, so the first point is that they were able to get Congress to amend. And then at the same time, without telling anybody, and indeed with President Bush announcing, don't worry — we now know that starting right after 9/11, they were doing electronic surveillance without warrants. So there was something that was-

BILL MOYERS: Breaking the law.

FRITZ SCHWARZ: That was breaking the law and also sneaking around the Congress. The other point goes back to my experience with the Church Committee. You can have something that starts in a benign way. And then it spreads to the unbenign and that always happened.

And it was true with NSA, National Security Agency, as proven by our investigation. They got every single cable that left the United States for 30 years. But they started only wanting those because they wanted to get information from-- encrypted, that's in code, cables that were sent by foreign embassies to their home government.

And that's perfectly proper. That isn't even covered by the FISA law that was passed after the Church Committee. But starting with that benign purpose, they had mission creep, which always happens when you've got a secret power with no oversight. They started with that good purpose. They then went to getting the cables of civil rights leaders, all of them and any Vietnam War protesters, all of them. So if you have--

BILL MOYERS: Mission creep. So they went from--

FRITZ SCHWARZ: Mission creep.

BILL MOYERS: --from the least offensive to the most extreme and indefensible.

FRITZ SCHWARZ: Yes. Yes. And that will surely happen and I believe I would bet my bottom dollar is happening now. Because you have a regime that's untethered from any oversight. And secrecy plus lack of oversight leads to mission creep. And that leads to the move to the indefensible.

CHARLES FRIED: Well, I believe the reason we're not in a terrible fix such as people are saying is... that-- this is over. I think what--

BILL MOYERS: What's over?

CHARLES FRIED: Well, what's happening in Congress, the Republicans had Congress. They lost Congress in 2006. They're going to have an awful hard time holding onto the presidency. This is politics which responds to unsuccessful and dangerous behavior.

And the political check is the one in a democracy that I believe in. And I think there's reason to believe it. If you like, I'd prefer Jay Leno to Frank Church because the real check on these people is when they become the butt of late-night comedians. It's over with them then.

FRITZ SCHWARZ: --Charles, you know, in the first place, we've made a lot of progress between us. Charles agrees they don't have the power to torture. They can't break the law. That's an issue in the Mukasey hearings right now. Secondly, we agree, Charles agrees that there should be real--

CHARLES FRIED: I didn't quite say they don't have the power to torture. I say that they mustn't, as human beings, do it.

FRITZ SCHWARZ: Okay. Well, I would say clearly they don't have the power. But-- and you've also agreed there should be real Congressional oversight. Now, of course the people ultimately are the check. But unless the people know the truth, they can't be a check. And this administration has tried to hide the truth and has lied to the public. And I'll take the torture again if you want me to on an example.

BILL MOYERS: Yeah, well, I was going to say Fritz, in your book I learned something I did not know. And I try to follow these things. I learned that much of the case that Bush, Cheney, Rumsfeld, and Rice made for invading Iraq came from an al-Qaeda operative who had been rendered to Egypt where he was tortured--

FRITZ SCHWARZ: Right.

BILL MOYERS: --for information that came back to Washington. And that information which prompted Cheney, Bush, et al, to want to go to war and invasion was not credible.

FRITZ SCHWARZ: It was not. There's a man called al-Libi. He was a bad person. He was a high-ranking member of al-Qaeda. He was sent to Egypt for the purpose of being tortured. He was tortured.

In Egypt he said there was a connection between al-Qaeda and Saddam Hussein. That was one of the reasons that Cheney particularly but Powell and Rumsfeld and Bush relied on to go to war. But — they knew — they'd been told by the Defense Intelligence Agency before they relied on it, Rumsfeld called it bullet-proof evidence. They were told that the evidence was totally unreliable by the Defense Intelligence Agency.

It also, on the point of the public can't do their job unless the truth is told to them-- Bush and in this case, Rice-- particularly lied clearly to the public about rendition. They said, "When we send people to Syria and Egypt," which the State Department condemns every year because they use torture regularly, "they give us a promise that they won't-- that for our people that we send them, they won't torture." Well, you know, that was simply unbelievable.

Also, as the book brings out, that was at the time that under the famous opinion of Mr. Yoo of the Office of Legal Counsel--

BILL MOYERS: John Yoo, whom you know, at Harvard.

CHARLES FRIED: No, he's at Berkeley.

BILL MOYERS: Berkeley, right. John Yoo, whom you know.

CHARLES FRIED: Jack Goldsmith is at Harvard.

BILL MOYERS: Goldsmith is at Harvard, right.

CHARLES FRIED: But--

BILL MOYERS: Who's been on this show and who is--

FRITZ SCHWARZ: Under the Yoo opinion, Y-O-O opinion — it was perfectly lawful to pull people's fingers out and burn them with cigarettes. So Tenet, when he said Egypt can do things we can't, was speaking against a background where the Bush Administration thought they had the power to pull people's fingernails out and burn them with cigarettes.

CHARLES FRIED: Well, you know, I'm the law professor. You're the practical man of law. But here I want to step back from law. I want to say that throughout our history and not only our history, world history-- great leaders have sometimes taken it upon themselves to say, "Well, this isn't the law but it must happen." Lincoln did that.

The Emancipation Proclamation was probably contrary to an act of Congress, the Confiscation Act. Roosevelt, Lend Lease, was probably in violation of the Neutrality Act to forbid this kind of action. He did it anyway.

BILL MOYERS: He was sending the destroyers and-- --

CHARLES FRIED: Which the British desperately needed.

BILL MOYERS: And Congress had not declared war.

CHARLES FRIED: Not only had it not declared war, it had passed the Neutrality Act to forbid this kind of action. He did it anyway.

BILL MOYERS: So are you saying--

CHARLES FRIED: Yeah. Smart lawyers. Now, the answer is-- it succeeded. It succeeded. They were great men in a great cause. And it worked. And in the end these are not such great men. And the cause has proven to be flawed. And their way of pursuing it was very badly executed. And it's failed--

BILL MOYERS: But if they had succeeded, would you have said what they've done is okay constitutionally?

CHARLES FRIED: Not constitutionally. It was okay, period. I don't add "constitutionally" because we don't-- we don't say that what Lincoln did was okay constitutionally. We just say it was okay. Now, if you fail, it becomes-- you know, a bad precedent.

FRITZ SCHWARZ: Gee, I-- would--

BILL MOYERS: Lincoln could have been hung if it had come out the other--

FRITZ SCHWARZ: --you mean if the war had been lost. But-- but--

CHARLES FRIED: Absolutely.

FRITZ SCHWARZ: But the-- I think much of what Charles said in that long answer was pretty good. But I think I'd disagree with him on the Lincoln and Roosevelt analogy because both of them acted in public. Lincoln did what he did--

CHARLES FRIED: Yes.

FRITZ SCHWARZ: --and the public knew what he did. Roosevelt did what he did after extensive dialogue with the Congress and the public. Lincoln-- who had good cause to suspend habeas corpus--

CHARLES FRIED: I don't disagree with that. I agree.

FRITZ SCHWARZ: So Lincoln went to Congress and Congress ratified his acts. This administration has tried to hide what they've done. Now, on picking up on Charles's point, they've done it badly. What they've done, particularly with respect to torture and extraordinary rendition, has hurt us in the effort to beat the Bin Ladens of the world. Hurt us for two reasons. First, it's been bad for our relations with our allies.

And secondly, it's given the Bin Ladens of the world a fantastic piece of propaganda. Because what we've done is to throw away our single-greatest asset, even greater than our military asset, which is our reputation. And I think you would agree with this, Charles, that our greatest asset is our reputation for being a government of laws and not of men.

BILL MOYERS: But, you know, the three of us around this table want to defeat the terrorists, right?

CHARLES FRIED: Certainly so.

BILL MOYERS: But if you come out and say, well, torture is wrong and rendition is wrong and all these are wrong, you're labeled soft on terrorism.

CHARLES FRIED: Well, this is why I keep wanting to make a distinction between torture and electronic-- impersonal, computerized, algorithmic searches of cyberspace. Torture is when I look you into in the eye, Bill, and I cause you great pain. That destroys not only-- that destroys my humanity.

I'm not talking about law. This is a law professor who's not talking about law. It destroys my humanity and it destroys the humanity of the people I'm working for. And at that point it doesn't matter what our cause is. We've lost.

BILL MOYERS: Because--

FRITZ SCHWARZ: And that's why they shouldn't be doing it. Because they've hurt us in their effort to take the president's power to the maximum extent and using torture, using water-boarding, which is now a current issue.

BILL MOYERS: In those hearings that-- the Senate's just had with Judge Mukasey, it was whether or not he should be attorney general-- he said water-boarding could only be illegal if it were defined as torture. Right?

FRITZ SCHWARZ: I think he's given about four answers on water-boarding, and I think they're not sufficiently clear. And that's why both Senator Specter and the ten Democrats are trying to--

CHARLES FRIED: I would imagine deliberately not sufficiently clear.

FRITZ SCHWARZ: But I think they're going to pin him down on it. And-- water-boarding is torture. And--

BILL MOYERS: What is water-boarding?

FRITZ SCHWARZ: Water-boarding is you lie someone down, you put something over their face, you pour water into them. They think they're drowning. It fills their belly. It's been used since the Spanish Inquisition. It's been condemned-- throughout history. We've condemned it.

FRITZ SCHWARZ: We prosecuted Japanese soldiers and officers for using water-boarding. We--

BILL MOYERS: After World War II?

FRITZ SCHWARZ: After World War II. We prosecuted prison officials in Texas and convicted them for using water-boarding.

And suddenly America, that was the leader in the world of cutting back on mistreatment of prisoners is now saying we think we have the power and we should use a technique we've condemned ourselves.

BILL MOYERS: But the president says we don't sanction torture. Do you believe him?

CHARLES FRIED: No.

FRITZ SCHWARZ: I'd give the same short answer: No.

[Continued]

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