The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT

photo of Louis Fisher

Subject: Louis Fisher
Interviewer: Alison Rostankowski

The segments included in this interview* excerpt were recorded in January 2004, as part of The Cost of Freedom - Civil Liberties, Security and the USA PATRIOT ACT, a look at the history of civil liberties in America and the controversy surrounding the USA PATRIOT ACT. The documentary is a co-production of The Duncan Entertainment Group with Iowa Public Television. Louis Fisher is a Senior specialist in the separation of powers with the Congressional Research Service of the Library of the Congress. He is the author of Nazi Saboteurs on Trial.

(* This transcript has been edited due to length.)

Having studied the Nazi saboteur trial in great depth, what do you believe happens to constitutional values in times of war?
In time of war, certainly World War II, the Supreme Court was not going to challenge anything that Roosevelt as Commander-in-Chief did. And when the Supreme Court wrote the Ex Parte Quirin case they had some nice language there that says that the courts are there to protect individual rights in time of war, in time of peace. But obviously that wasn't to be the case. It's not until long after the war is over that the courts feel emboldened enough--usually after the president has gone--to make some stands in defense of civil liberty.

A lot of the current debate revolves around two cases--Milligan and Quirin, can you briefly explain the background to each case and what court rulings resulted?
Well Milligan was someone who was brought before the Supreme Court on an appeal that he had been unfairly detained during the Civil War. By the time it reached the Supreme Court the war was over. President Lincoln was dead and some of the very cautionary actions by the Supreme Court in earlier cases were now put aside and the Supreme Court in the Milligan case said that in time of war so long as the civil courts are opening and operating that you cannot try someone by military tribunal as they wanted to do with Milligan. So that was an example of a court after the war being able to reassert judicial scrutiny. In the case of Ex Parte Quirin in 1942 right in the middle of the war the Supreme Court was not going to challenge a judgement by President Roosevelt even though the justices knew that President Roosevelt had violated a number of what are called the articles of war. These were statutory provisions dictating how military trials should be run. So even with that the Supreme Court was under great pressure internally to uphold the jurisdiction of the military tribunal in time of war.

Can you talk to the precedent the justice dept. is using (Ex Parte Quirin) to justify the establishment of military tribunals.
The justice department right now is looking very much to the Quirin case for support as to how it’s handling what's called enemy combatants and that phrase is used in the Quirin case. Enemy combatants or illegal combatants are those who come not in uniform but in civilian clothes to do the work of an enemy. There's really little connection between the Nazi saboteurs in 1942 and the current cases of Hamdi and Padilla. Because with the Nazi saboteurs they were apprehended, they were charged with four counts, they were given counsel and there was a trial. Whereas in the case of Hamdi and Padilla they are not being charged, they have no access to counsel, and they can be held the administration says as long as the administration wants. So there's night and day difference between the Nazi saboteurs and Padilla and Hamdi.

So the comparison is a poor fit? Are there any points of similarity?
If you look at the history of the United States they broke with some of the British precedents where military matters were either under the king or executive officials. If you look at the U.S. Constitution you can see how much of that was placed with congress. So Congress throughout the years had passed statutes directing how a court marital would be directed and what the charges would be and what the penalties would be. What the Quirin case is interesting is that two of the charges were under articles of war--those are statutory creations. One was executive made; it was a law of war. The executive branch would look under certain international rules or international customs to decide what would be a law of war that would be the third charge. And the fourth charge was a general one of conspiracy. So under the Quirin case you had a mix of executive creations--the law of war-- and legislative creations--articles of war. Whereas in the current time you're not charging anyone and Hamdi and Padilla with any action. So that there's no charges and the Justice Department argues if there are no charges why do you need an attorney? So there's no attorney either.

Who gets to define whether someone gets to fit into that definition of terrorism and how do you stop the law from being abused and applied to the average run of the mill crime?
A person who is a terrorism suspect, if you will, who is categorized as a person of interest to the terrorism investigation is designated as such by individualized investigative or intelligence based criteria. For example, if my name appears in the address book of Muhammad Atta, I naturally would be considered a person of interest to the authorities. If I can offer an innocent explanation as to why my name is in his address book, we go to school together, we sometimes have a drink together, we socialize together independent of any terrorist plans, then that innocent explanation of course removes me of any taint and therefore deprives the government of any interest in me an ordinary law professor. However, absent such an innocent explanation I hope that the government would still consider me to be a person of interest to their investigation because absent such an innocent explanation the government has to presume the worst.

So do presidents by themselves have the power to create military tribunals?
Well part of the US constitution that has always been distinctive is to rely not on power concentrated in the executive or the king but rather in the deliberative process and a very sophisticated system of checks and balances the separation of powers so that power is not placed in the hands of one person. And if you look at the Nazi saboteur case that's violated in the sense that President Roosevelt was the one on his own by military order and proclamation to create a military tribunal. It was President Roosevelt who named the members of the tribunals--the generals all subordinates to him. It was President Roosevelt who named the prosecutors--Attorney General Biddle and Judge Advocate General Cramer--both subordinates to him. President Roosevelt named the defense counsel--Colonels--subordinate to him. And after the tribunal was over and they made a judgement where would the record go, the trial record? It would go to the reviewing officer. And who would that be? President Roosevelt! So there's a totally tight circle entirely within one branch without any legislative or judicial check.

Who gets to define the war on terrorism?
Congress in 1942 was just an onlooker just watched what Roosevelt did. There was no effort by anyone in Congress and certainly no committee of Congress took any steps to scrutinize, or to override or to have any legislative participation. They were comfortable in letting the president run the whole show.

How does it compare to today's Congress?
When President Bush on November 13, 2001 authorized the creation of a military tribunal, the Senate judiciary hearing held specially invited Attorney General John Ashcroft to come. The focus would be on the military tribunal. And Attorney General Ashcroft at the hearing said anyone who criticizes the administration is helping the terrorist--helping the enemy. The next day the Justice Department explained that's not exactly what Ashcroft meant. He meant that anyone who makes misstatements about the administration is helping the enemy. Well of course this administration makes those misstatements all the time and we don't say they're helping the enemy. So right from the start, any effort at legislative scrutiny or oversight hearings was rebuffed by the administration. And there were very few members of Congress willing to challenge the administration.

I've also heard the explanation that Congress' silence simply means that members agree with the administration and therefore doesn't need to challenge it. Isn't that an alternative explanation?
Well I came to CRS in the 1970s and I worked with a lot of members and committees that cared a lot about separation of powers and legislative prerogatives. There are very few people that I know today that take that as an interest. There are a lot of reasons for that. When I came in 1970 Nixon was in office and there were many disputes. But to care about legislative prerogatives I think you have to take time here to learn about the institution. I think campaign finance makes it very difficult, how much time is spent raising money. I don't think that that corrupts members but it certainly takes away the time that members need to look after their own institution. And there are many other reasons why members of Congress today and the committees of Congress today are not watching out over their own institution, which is what the framers assumed. The framers assumed that any time one branch would be invaded by another you would fight off the incursion. That has not been happening for quite some time.

s the imbalance of power that you describe typically a reflection of a war climate?
Well in time of war the courts traditionally in the past did take war power cases. From 1800 up through the steel seizure case under Truman in 1952 courts regularly took war power cases and the only one that I can think of is after the Civil War that there was one case the Supreme Court with good reason decided to duck. From Vietnam up to the present time courts duck every war power case. And they do it under either saying the party has no standing, or that the issue is moot, or that's its not ripe enough or it' s a political question or other kinds of standards. So we haven't had the Supreme Court since 1952 when they struck down Truman's seizure of the steel mills we haven't had a court challenge a president. And instead its made it very clear that the debate over the constitutionality of war powers is between the two branches --the legislature and the executive. And if the legislative branch doesn't do anything we have the concentration of power in the president.

In your book you compare the truth and reality of the saboteurs capture. Can you talk to what actually happened, how the FBI said it happened and why the need to maintain the public face had an impact on the eventual decision to initiate a military trial?
Well it was very interesting in 1942 to create a military tribunal because they had not been used really since the Civil War. There was one small incident in World War One. So not from the 1860s to 1942 did we have any experience with military tribunals. And I think there are two reasons why the Roosevelt administration created a military tribunal. One, is that they were going to try the Germans in a regular civil court and the person there were interrogating George Dasch expected that--go in to civil court, plead guilty, and he said will there be much attention? No just plead guilty. He says I have relatives in Germany. No, just plead guilty! And then one morning when he woke up and looked at the newspaper and saw his photograph on it now he said I want to go into court and tell the whole story which would mean that he would explain how he turned himself in and helped the FBI find the other seven. And the administration didn't want that to be public because they would want Germany and other countries to know that we have this real crackerjack way of finding saboteurs that come on our shores. And so that was one reason for a military tribunal. And the other was that people in the administration who looked at what kind of a penalty could be applied to the eight Germans they couldn't find any law that would give them much more than two or three years in jail. And President Roosevelt was intent on making sure that most of them would be executed so that was a second reason to go to a military tribunal to avoid the restrictions of a civil trial.

Royall, in defending the Germans, argued that there was serious legal doubt as to the constitutionality of Roosevelt's executive order. Why did he believe that to be the case? Can you talk us through his arguments?
The strongest argument that Colonel Royall had as defense counsel would be to say that Roosevelt had violated different articles of war created by the Congress. And in fact the justices of the Supreme Court recognized that Roosevelt had violated the articles. That was his strongest ground but what the Supreme Court decided its mission was to limit itself to whether the military tribunal was the proper jurisdiction. And all the other issues of articles of war or difficulties in the procedures inside the trial would be things that the Supreme Court would not look at. It simply didn't have jurisdiction. It was not proper. And they closed the door after that.

Why did the prosecution believe its case was constitutional? Please talk me through the government's argument.
The Justice Department could always cite some of the early examples, some of them from the Civil War that the president had authority as commander in chief to create military tribunals. And that argument is strongest when you're in a place, say Mexico, where there are not civil courts available and General Scott at that time created military tribunals. But he never argued that he had full authority to do that. He did that as an emergency measure and he said that if Congress wanted to override him or change what he did he recognized that the power lay with Congress and not with the executive branch. So the administration could argue best when you have no civil courts to address these matters to. And that was the difficult for the administration then. There were civil courts operating and there were many people who helped the eight Germans and they were all prosecuted in civil court. So I think the reason for not going to civil court was not that they weren't open they weren't functioning but because you couldn't get a death penalty under the charges that could be brought and they didn't want to publicize the fact that the Germans had essentially turned themselves in to the FBI.

What was the public's reaction to all of this?
Well the public was fascinated. There was a lot of press coverage of the boxes of explosives and fuses and so forth that were found on the beaches that the Germans brought in. This is all photographs in the newspapers it was fascinating to have the eight Germans in a DC jail being brought each day with these trucks and jeeps and everything from the US district jail to the Justice Department building where the trial was held. So this was circus and a lot of carnival atmosphere to it. And so in terms of public attention it was fascinating. But there were people in the administration; particularly Secretary of War Henry Stimpson who did not like this and did not think this was the proper way to do it. And years would go by until late in 1944 when two more were found submarining from Germany and this time Stimpson insisted that the matter be handled professionally through the military; not through a show trial in the Justice Department. And Stimpson won and the trial was held up in Governors Island.

How do you think that compares to the general public today in relation to matters like Guantánomo?
I don't know if the public can keep track of some of the cases. Padilla was the one who was picked up in Chicago O'Hare airport. He was initially not charged with any crime. He was held as a material witness which means that he had access to an attorney. And the administration thought he had information that would help them on another case. So he was brought into New York City as a material witness and then suddenly the after several court appearances and with the assistance of his trial attorney Donna Newman, the administration picked him up out of New York City and brought him to a naval brig and she has not had access to him since that time. He was supposedly bringing in a dirty bomb. We don't know what evidence there is on that score. There are other matters such as the Zacarias Moussaoui case of a French citizen with a background from Morocco. He's in civil trial, so we can do that. We can have a terrorist in civil court. But the picture on that has changed too because he was at first called the twentieth highjacker. Then the Justice Department seemed to have dropped that theory and now they're talking about him as maybe being part of a second wave. I don't know how strong that theory is being pushed. But whatever it was Judge Brinkamar handling the case and looking at all the classified information that the administration made available to her made the judgment that there is no way you can justify the death penalty. And that was her decision on that mater. So these issues have been looked up and there are many loops and complications even for those who follow them. The general public probably only gets a general picture as to what is happening. And even Hamdi and Padilla they're both US citizens but there might be many citizens today who don't regard them as real US citizens--not people who were born here, who grew up here who had backgrounds in the Middle East.

What was the justification for allowing two American citizens to be tried by military tribunal? How does that compare to President Bush's order?
Of the eight German saboteurs, two had claims for citizenship. One was Pete Berger who was Dasch's roommate in New York City and agreed to turn himself in. He was a naturalized US citizen but when he went back to Germany he joined the army and even his attorney Royall agreed that that action by him meant that he would forfeit his citizenship. So his counsel never argued strongly. The one who had the higher claim was Haupt. His parents were in Chicago and he was a US citizen. But to the Supreme Court it didn't matter whether you were a US citizen or not; that if you came to this country to carry out the actions of the enemy, particularly if you came in civilian clothes and you were not a prisoner of war then you could be treated as an enemy combatant and prosecuted and citizenship didn't play into it.

And today?
It's interesting once with 9/11 Bush fairly rapidly put out a military order authorizing a military tribunal and if you look at the language of the Bush order and compare it the one Roosevelt issued in 1942 its obviously borrowed extensively from it. There could have been arguments that Bush would have been on stronger ground to go to Congress and get authority which I think he would have unquestionably gotten from Congress. And then he would have had not only whatever powers he thinks he has as President, but he would have been acting on statutory powers and I think that would have protected him in any type of challenge in the court. And I think that is going to be strong issue in the Padilla case because what the Second Circuit did was to say that the administration is operating against the statute that Congress passed saying you cannot detain a U.S. citizen without authority of law. So you have a President operating on maybe what he says are his powers as commander-in-chief. But in this case, in the Padilla case he's operating in the face of a congressional statute and that historically has always been the lowest point for presidential power when you're acting in an area that Congress has considered and filled with a statute. You act in violation of that you're most likely to be turned down by the courts.

In reaching its conclusion the Supreme Court limited its decision and left, you say, Milligan untouched. Can you explain the rationale behind this?
The administration hoped to have Milligan overturned one hundred percent because that that decisions was wrongly reasoned and they thought it interfered with the powers the President ought to have in time of war in time of emergency. In fact the Supreme Court in the Quirin case only only slightly adjusted Milligan. It still upheld the notion which is true today which is if the courts are open and they're operating and that should be...What the Supreme Court said in Quirin they held on to the notion in Milligan that if the courts are open and operating you have to work through that and not through the military court. But certainly they carved new ground that if you are a US citizen as Milligan had been, as Haupt was - Herbert Haupt, that doesn't matter. If you come here as carry out the work of an enemy you can be brought in and tried in military court. So that was a new precedent. Milligan was kept with that one exception.

Why did it take so long for the Supreme Court to issue its full decision?
Once the decision, the case went to the United States Supreme Court many people kinda congratulated the United States look at this we have saboteurs here and we're going to give them nine hours to argue their case before the US Supreme Court. But when you look at the procedure it's not attractive at all. Colonel Royall was in the military tribunal and he decided to take a couple of days off and see if he could go into civil court and get a writ of habeas corpus to challenge the jurisdiction of the military tribunals. And he had met first with Justice Hugo Black in his Alexandria home in the middle of the summer. And Black arranged for Royall to go outside of Philadelphia to Justice Robert's farm. And Attorney General Biddle was there and Judge Advocate General Cramer was there and from the farm they called Chief Justice Stone to see what his thoughts were about hearing oral arguments. And there was agreement to do it but Royall who had practiced mostly in North Carolina wasn't familiar with the federal procedure and he hadn't gone to any lower court so although the date was set for oral arguments it wasn't until one evening that Royall went to district court got turned down at 8 p.m. and oral arguments before the US Supreme Court started at noon the next day. The briefs to alert the court to what the issues were were not filed until the same day as oral arguments so the court justices were not prepared. And Justice Frankfurter at oral arguments asked Royall how can you be here? You haven't even been to appellate court and Royall said I've been very busy. Is it possible for us to keep talking and I'll get the papers over there? And so there were two days of oral argument. On the third day when the Supreme Court was ready to hand out its decision they hadn't heard from the DC circuit and they get the papers from the DC circuit around I think 11:55 in the morning and the Supreme Court grants, that is they take the case from the DC circuit and then at twelve o'clock hand down the decision. So it was that kind of a scrunched timetable throughout the trial. And what the court did when they handed down a decision was it was a precurium--it was for the court, it was a one-pager upholding the jurisdiction of the military tribunal without any legal reasoning. Because they didn't have time and they weren't even sure what the legal reasoning was. So all the precurium said is we'll be coming down with a full opinion. And it took the court three months to do that and within a week a week and a half six of the eight Germans had been electrocuted. So they was hardly anything the Supreme Court can do in the full opinion to cast doubt on what it said in the precurium. So you have this situation of the court now having to come up with reasons after the fact, knowing that Roosevelt had violated articles of war and trying to figure out what kind of full opion they can do without disgracing the court. Afterwards even justices who voted in the Quirin case like Justice Douglas or Justice Frankfurter looked back at that experience and realized that was something the court should not do. They should not take the court in that timeframe, come up with a quick precurium, and then after the fact figures out what the legal reasons would be.

In your book you point out and examine a number of similarities between Roosevelt's order and President Bush's 2001 order. Can you talk us through the similarities?
There were not any significant differences between what President Bush did on November 13 and what the Roosevelt administration did in 1942. They both allowed the ...Roosevelt had allowed the President to appoint all the people he did, the tribunal, the counsel and so forth and to have the trial record go back to him. Bush followed that scheme also, but in the case of Bush its improved a bit because under Roosevelt there were no rules for court procedure in the military tribunal. Whereas in the case with Bush as we don't have a military tribunal yet there's been time to work out a set of procedures and rules; the Pentagon has released them in draft form, the American Bar Association and other groups have commented on them so we now have a fairly extensive set of rules that would govern in the case of a military tribunal. So that has been an improvement on the side of the Bush administration.

In the case of Quirin you had eight Germans who had been picked up with the help of Dasch and Berger. You found the boxes of dynamite and fuses on the beach. There was no question that they came here to commit sabotage and so you had a full story on them. Compare that to the enemy combatants today, particularly Hamdi and Padilla. There's no such evidence of Padilla being charged as sort of a dirty bomber. Hamdi being picked up in Afghanistan, so what evidence do w have to make them an enemy combatant? To deny them counsel? Not charge them with anything and to let them be detained as long as the administration wants. It turned out the administration had to put together what is called a Mobbs declaration--m-o-b-b-s. He's someone who works in the Pentagon. And he actually knows nothing about Padill and Hamdi. What Mobbs did was to go through a lot of intelligence documents and based on that put together a three or four page declaration justifying the designation of enemy combatant. But we don't know the value of the intelligence material he has because some of that came from the Northern Alliance in the war in Afghanistan. And the people in the Northern Alliance, the Tajaks and Uzbeks were asked we've just picked this person up. Tell us if he's a Taliban or if he's connected to al-Qaeda. The newspaper stories say that if the Northern Alliance said that if they said Taliban they would get five thousand dollars each and if they said al-Qaeda they'd get twenty thousand dollars each. So you have this monetary incentive. The Northern Alliance to make certain designations or determinations and all this is being brought in before someone. In the case of Mobbs. In the civil court none of this could be introduced because it's all hearsay. Mobbs knows nothing other than what he reads in intelligence statements.

In your opinion, are military tribunals a real cause for concern?
Even the Roosevelt administration had cause for concern about the Quirin trial. Secretary of War Stimpson thought it was absurd that Attorney General Biddle was going to take a month off to be a prosecutor. And Stimpson was also offended that the other prosecutor was Judge Advocate General Cramer because the Judge Advocate General should be at the end of the line to make sure that justice was done and procedures were correct. He should be at the end. He should not be at the start as a prosecutor. There are many other things about the way the trial was conducted that offended Stimpson, so when two more people came from Germany in November 1944 and made their way from Maine to Boston down to New York City and were picked up, Biddle was still there still wanting to prosecute the second case, Cramer was going to be a co-prosecutor and Stimpson said no no no we're not going through this again! And Stimpson was successful. He lobbied a lot within the administration and he was successful in having it taken away from the Justice Department and being put with professionals in the military and handled up in Governors Island in New York City. And that was an example than even the administration inside recognized that what it did in 1942 with the eight German saboteurs was not a good precedent and it should be made more professional and given to people who have studied the law, who are capable of reviewing the record and who have a legal background. And so even the administration turned its back on what it did in 1942.

You have also suggested that the Supreme Court deliberately avoided discussing some of the trickier aspects of the Quirin case. Can you explain?
One of the problems for the Supreme Court even on the first day of oral arguments was whether some of the justices should be disqualified. Frank Murphy had already disqualified himself because he was in the reserves--military reserves. So that left eight justices. One of the first issues was whether Chief Justice Stone should sit because his son Lawson was working with the defense on the Nazi saboteurs. And Attorney General Biddle said that's not a problem because although he is working on defense he's not working on the writ of habeas corpus and that's the distinction. And so Stone asked Colonel Royall for the defense you see a problem with that and Royall agreed with Biddle. So it looked like it had been choreographed that Stone would now sit. But there were two other justices who probably should not have sat. Justice Felix Frankfurter had a habit of going over to the administration and meeting with Roosevelt, meeting with Stimpson and meeting with others and early on when the eight Germans were captured Frankfurter had dinner with Stimpson. Frankfurter said there should be a military tribunal and it shouldn't be a mix of military and civilian it should be all military and so Frankfurter had already staked out a claim. That was he would continue to sit and he wrote later something a soliloquy by Frankfurter that was just amazing piece of harsh rhetoric to show that there was no objectivity or lack of bias in Frankfurter. And the other one who should probably have disqualified himself was James Burns. He was over at the administration so much they thought he'd taken leave from the Supreme Court. But Biddle would write him letters --dear Jimmy here's a draft executive order could you look at it? Here's a draft war powers bill could you take a look at it? Here's a bill can you see that it gets through Congress? This is a justice of the Supreme Court. And Burns had been in the US Senate so you have him with a conflict of interest lack of independence. You have other problems; the justices recognizing that Roosevelt violated express language in in the statutes, articles of war. They decided not to go into that in their decision. They settled some things, US citizens can be handled, but otherwise it was going to be a deferring on the part of the judiciary to a decision that the President Roosevelt had made as to the necessity of a military tribunal and they would not go beyond that. There’s one other thing. After the decision was handed down Justice Frankfurter asked one of his former students, Frederick Bernays Wiener what he thought of the decision. And Wiener by this time he was a distinguished expert on military law. And Wiener wrote three letters to Frankfurter and he just ripped the Supreme Court for its ignorance of the law for the procedures used for all kinds of frailties in the decision. So these were really hard hitting decisions.

Looking back historically and seeing all these cycles of civil liberties encroachments during war time and power shifting to the executive branch, do you think we have learned from history and have enough checkpoints and safeguards in place to prevent such abuses from occurring again or do you think we will be looking back 5, 10 15 + years from now and seeing a repeat of the same problems?
We’ll I think these mistakes of the past can occur again ‘cause the only the reason they’re not going to occur if we have a vigorous system of checks and balances. And if when Congress sees that the executive branch is abusing its power the Congress will step in. And I did a book in the year 2000 called Congressional Abdication on War and Spending and unlike the framers who thought that each branch would protect its realm, Congress hasn’t been doing that for some time, particularly from World War II on. So we don’t have a legislative check. The courts have been deferring greatly to presidential judgements in the war power area. So the structural protections we had, checks and balances and separation of powers are not functioning the way people thought that they would. If that’s so then you have a concentration of power and the abuse that comes with it. What else can we say about can it happen again? Just in the area of intelligence failures, the Church Committee and the Pike Committee in the 1970s looked into mistakes made by the intelligence community. And as a result of that intelligence committees were created in the House and Senate and yet as soon that was in 1977-78, yet in the 1980s starting in ’83 and ’84 the administration with the help of the intelligence community got involved in the Iran Contra affair. That led to the Iran Contra hearings in ’86 and the report in ’87 as though nothing had been learned over the previous decade. And we have the same problem now with the war in Iraq where you have, you can go in to a web site of CIA, you can go into and download declassified reports. And what you find say on the weapons of mass destruction report in October 2002, this was just before Congress was going to vote on the Iraq resolution, you have a report of 1,900 pages and the first paragraph says that Iraq has weapons of mass destruction, chemical and biological weapons. And if you look at the report the report doesn’t say that. So someone, we have professionals doing the report, couching it, putting in qualifications, conditions and then someone else coming up front, in the lead paragraph which people will read and saying something that’s not true. That there was no evidence that Iraq had at that time chemical and biological weapons. So we have the same problem again. We have forty billion dollars set aside every year for the intelligence community and yet those reports are doctored. We don’t have the vigorous oversight by Congress, particularly by the intelligence committees, so we are reliving the same problems from decade to decade.

Can you clarify for us what an executive order is and how it works?
Well in addition to presidents getting authority from Congress by statute, presidents from George Washington on up have used two other vehicles, proclamations or executive orders. Most of those, I would say 96, 98 percent are not controversial. They are released, particularly executive orders, to carry out statutory policy. But every now and then the administration will issue a proclamation or executive order that has no statutory basis, might even be contrary to a statute. And where the President wants to make law on his own without Congress. And Congress has various ways to correct this. They can cut off money so that that no funds may be used to cut off that executive order or proclamation. And then executive orders and proclamations are challenged in the court. So the executive order setting up the seizure of steel mills by Truman in 1952, that was struck down by the Supreme Court. So there are checks but it gives the President an opportunity to take the lead, take the initiative and see if he is going to get checked by the other branches.

In your opinion what are the strengths and the weaknesses of the ability to issue these kinds of orders and proclamations?
Well the strength of issuing these is you take the lead and you’re home free unless someone is going to stop you. And it takes usually several years, particularly in court to reverse an executive order or proclamation. The down side is that you’re floating out on your own. You have no other support for what you’re doing. You’re vulnerable to the charge of usurpation and abuse of power.

Is it true that one of Nixon’s executive orders allowed for domestic surveillance of Americans? And if so, does this bolster the validity of the concerns of civil liberties groups that the same kinds of things, of the Hoover Nixon era might end up repeating themselves, if not today then maybe a little bit down the line?
Well one of the concerns of the Nixon years is that the federal government was using its powers to monitor groups – student groups and you’d mix FBI agents agents in a student group. Maybe the agent might want to give some encouragement to some illegal action. And you had these people monitored. So this was reviewed by Congress and by the courts and checks were placed on this. And one of the agreements was that there would be a legitimate right for the administration, for the intelligence community to monitor people outside the country. But you shouldn’t monitor people inside the country. There was supposed to be a wall set up so that the CIA could collect information as part of the intelligence apparatus, but that information would not be given to the FBI for prosecution. And now we’ve seen after 9/11 that as a result of decisions by the courts that wall no longer appears and there is language in the USA PATRIOT ACT encouraging surveillance by the administration not just internationally but domestically. So a lot of concerns we had in the Nixon years about an administration that was abusing civil liberties of citizens of the United States will return.

Taking aside the civil liberties argument, can you address the argument put forth by some that suggests that as a nation these measures have not increased our national security?
When President Bush after 9/11 came to Congress for authority to act against Afghanistan and he received that authority in the Use of Force Act, I think September 18, he did what President Clinton never did. Clinton never came to Congress for any authority. So it was hopeful that Bush came to Congress for authority and there was broad national support and international support for the United States to go to war against Afghanistan with the terrorist cells and the training camps and the Taliban and al Qaeda . There was not the same support for going to war against Iraq. And there’s been concern that the United States initially got involved in Afghanistan when the Soviet Union was there. And we gave support to the Mujihadin. And then we exited and the Taliban took over. So there was the understanding after 9/11 that we should not make the mistake of getting involved in a place like Afghanistan and leaving it as a vacuum. And yet after Bush got authority from Congress to go to war against Afghanistan, instead of completing the job there which is very very complicated with the borders with Pakistan and Iran. The Bush administration began the drumbeat to go to war against Iraq. And ended up making a lot of comments publicly that were disproven. Bush one time said that there was a report saying that Saddam Hussein will have nuclear weapons within six months and the report would have been done by the international agency, the Atomic Energy Agency. And the agency said we never did such a report. It just didn’t even exist. And there were claims by the Bush administration that there’s a connection between Iraq and al Qaeda because Muhammad Atta of 9/11 met in Prague with an Iraqi intelligence official and the Czech government says there was never any such meeting. So again and again comments made to go to war against Iraq based on statements that were false, not proven, contradictory. And what it has done instead of being able to complete a very difficult job in Afghanistan and make sure that the Taliban do not take back control, and all they are looking for is another vacuum to do exactly that. The United States is putting in the lion’s share of its resources and troops into Iraq. And although there was no al Qaeda connection to Iraq before there probably is now because other countries are going into Iraq over the borders to give assistance. So we in although we had international support to go into Afghanistan we're lacking that same international support in Iraq.

It seems from what you said that Bush has made some clear misstatements in regard to Iraq why didn’t anyone in Congress challenge or question those statements? Why weren’t those tough questions asked? Is this symptomatic of a larger movement over the last years towards failure to question the executive branch?
Well once President Bush came to Congress and he wanted the Iraq resolution, the burden was on him to make the case with evidence that was persuasive. And many people could look back at the Vietnam years where President Johnson came to Congress in August 1964. Said there had been one attack in the Gulf of Tonkin against a U.S. ship. True. Said there had been a second one. For all we know today there never was a second attack. But based on what the President said without any independent investigation Congress passed the Gulf of Tonkin Resolution. And many members at the time thought by supporting the President you could avoid war. And yet by February or March of ’65 Johnson was escalating the war in Vietnam. So people knew that history in 2002, when Bush is asking again based on evidence that was not persuasive, or that was contradictory, for statutory authority. And in the end Congress amazingly did exactly the same thing. They said that by supporting Bush in the statute we can avoid war. And the report by the House International Relations Committee says that expressly. So they say the same thing that was said back in ’64 with the Gulf of Tonkin. And another factor was the Democrats seemed to be very concerned that if they didn’t support Bush they would look weak on national security. Whereas the Democrats could have, particularly in the Senate, since they still controlled the Senate at that time. Could have said interesting case you make here. The information is not adequate right now. We want you to go to the UN, have inspectors go to Iraq see exactly on the ground what the conditions are. And then after you get us additional information we will vote on this, but not in October 2002 in the middle of an election. We don’t want to make the same mistake we did back in ’64 which was a presidential election. We don’t want to have our vote on going to the war colored by partisan considerations. So the Democrats in the Senate could have made that argument in October 2002. But instead they decided to support Bush. I think the votes were 23 against the resolution. That’s 22 Democrats and one independent.

In terms of the Constitution, in terms of the system of checks and balances you often hear the argument that the pendulum swings back after war, how do you see the PATRIOT Act as different from other war time measures throughout our history? Is the PATRIOT Act better, worse, or the same as what has gone before?
Well some people argue on this pendulum theory that presidential power might increase during times of war but then Congress reasserts itself. That was true from 1789 up to World War II. I think from World War II to the present time, fifty some years we see a steady increase in presidential power. Occasionally Congress will give indications that it’s going to reassert itself. When it passed the War Powers resolution of 1973 and yet instead of being a reassertion it was another giveaway ‘cause the War Powers resolution recognizes that presidents can go to war on their own without any legislative authority for up to 60 to 90 days. So that was hardly a reassertion by Congress or hardly keeping faith with the intent of the framers. So I think what we’ve had is five decades of continued presidential dominance, less involvement, often no involvement by the courts and less understanding by members of Congress on what their legislative prerogatives are and how the structure of government is meant to protect individual rights and liberties. That was all supposed to come out of a rejection of monarchy an acceptance of small r, republican form of government. If you ask people today what a republic is I don’t think that they have any idea that it’s self government that is trusting in elected officials through the representative branch in concert with the president to make policy in a deliberative way not a unilateral way by the president. So all these values that we’ve had for a long time have been declining ever since World War II. And there is very little evidence that anyone is going to rediscover them.

It seems from what you are describing that we are in a period of “imperial presidency” to use Schlesinger’s term.
Yeah you can either call it an imperial presidency; there have been many academics who have helped champion that, including Schlesinger. Or you could say it is a return to monarchy, which the framers thought that they had rejected. It’s a return to monarchy at least in the war powers without any notion of joint collective judgment and action. So the very values that made the United States distinctive, separation of powers and checks and balances, the deliberative process those are the values that are under attack. And not too many people either in the media or the academic community or in public office seem to want to revisit those and see what the costs will be.

What could the real consequences be in a shift towards the kind of return to monarchy? Why should people care? What are the potential consequences?
Since talking about the constitutional law isn’t going to touch a lot of people, I talk about something very down to earth, the Pledge of Allegiance. And tell them that the flag is not the important thing. They get offended when I say that, but the flag, we have a pledge of allegiance and we say, “I pledge allegiance to the United States of America and to the republic for which it stands.” The flag represents a republic, so if we lose the qualities of a republic, self government and our ability to tell people around the world that we believe in democracy here. That we are against autocracy, we we’re losing the very standard and value that makes the flag meaningful. If we, if it doesn’t stand for a republic then the flag doesn’t stand for anything. Or we would have to change and say we pledge allegiance to the flag of the United States and to the president for which it stands. So I think until we can rediscover the democratic values here, we’re not in any position to go to Iraq or anywhere else and tell other nations how they should govern themselves. Or no position to export democracy if we don’t have it here.