Guests: Bruce Fein, former associate deputy attorney general, Republican counsel during the Iran-contra hearings, and founding partner with the Lichfield Group David Keene, chairman of the American Conservative Union Norman Ornstein, resident scholar at the American Enterprise Institute
Diane Rehm: Addressing the nation last night, President Bush continued to predict success in Iraq. But he asked for patience, and he acknowledged mistakes. In the past week, the President also confirmed he had authorized domestic spying without court oversight, and he changed course -- to back a ban on the harsh treatment of terrorist detainees... [introductions]... First let's talk about the President's speech last night. Why did the President decide to go before the nation in a fairly unusual Oval Office speech. Norm Ornstein?
Norm Ornstein: Well, I think the reason is pretty clear, Diane. He's really been battered in the last several months over Iraq. His approval rating dropped down into the 35-40% range -- which is a terrible position for a president. He was put on the defensive over Iraq. And now, over the last couple of weeks, has started to move onto the offensive.change the tack on Iraq to try at least to rally the public but also to make clear that he's going to stay.
DR: David Keene?
David Keene: I think that's exactly right. He has been on the offensive and that has made a difference in his poll numbers. From that standpoint, the speech was a pretty good performance. It comes, though, in the context of some of the things you've mentioned... incuding the failure to invoke cloture on the Patriot Act reauthorization in the Senate last Friday. And then the disclosure in the New York Times and following on with other reports that the Administration had in fact authorized spying without warrants by the National Security Agency in furtherance of their war on terror. So he's got a lot of other criticism, and I think he wants to focus his offensive on issues that help him. I think what he talked about, assuming it develops as he wants it to develop or hopes it will develop willl help him. I don't think he wants to be diverted to these other subjects.
DR: Bruce Fein -- did last night's speech help the President?
Bruce Fein: I think the answer is, no. Because the statements he has made with regard to Iraq are so contrary to what we can see on our TV screens and see on the ground that it continues to reduce his credibility. It reminds me of the "credibility gap" -- that coined phrase in the '60's regarding the Vietnam War. There are still private armies that dominate the scene in Iraq even during the balloting most recently. There's no indication that any of the major factions -- the Sunnis, the Shi'as, and the Kurds will align along sectarian, ethnic lines, and keep the country divided. If you ask, Do you see any progress on the ground -- of greater security, of great unity? -- it's not there. And when the President speaks about victory around the corner, the light at the end of the tunnel, people stop paying attention because they see it's simply not a credible description of what's ongoing.
DR: But the President did acknowledge that the Iraqi elections won't mean an end to violence necessarily, but that they are beginning something new -- a constitutional democracy which he called is at the heart of the Middle East. David?
DK: Well, if he's successful and if the Iraqis are successful in binding together a country under this constitution that is able to function, then that is a great victory in terms of what Bush has been trying to accomplish. I share Bruce's skepticism of the ability over any long term for the Sunnis, the Shi'ites and the Kurds to get along. Iraq is an intellectual construct put together by the British, not a real country. Because of that, these factions just don't work together very well. But, I think that Bruce goes a little too far, not in saying that this may go on and on and on -- which Bush acknowledges -- but I do think there is a sense in Iraq, having seen some of the recent international polls that have been taken there and others that show that most Iraqis are not happy with us being there, because they're also nationalists, but they are happy with the progress that's being made. They're very optimistic about their own futures, something one wouldn't expect from just reading in the newspapers and watching the media here. So I think the jury's out on what's going to happen.
DR: Norm, the President responded to critics, calling for a timetable for Iraq.
NO: The President certainly wants to draw a sharp line between his policies and his approach and where he's going to go, and those who want to set a specific timetable. The one change that we've seen in real terms with the President beyond the public relations offensive -- and it's a significant one -- is that he's started to bring in other people, members of Congress, and to listen a little bit to some of his critics. I frankly think he should listen more. Joe Biden, Jack Reed, John McCain have all for months and in some cases longer than that been arguing that we're not pursuing the right path in Iraq. That includes a military path. All have called for an end to the search and destroy approach where you go in, demolish a village and get rid of the terrorists are were there, then leave and let them come back just a few weeks later -- to something where you go in, hold the territory, and begin to build something more. We're doing that a little bit more. These are not people who are saying, Time to pull out! In fact, many of the critics, including Biden and Reed any many of the Democrats have been saying, You can't just pull out now. So Bush has changed his policies a little bit. What he's hoping to do here, though, is both draw a distinction between those who are on the other side of the divide and want an immediate pullout, and also to buy more time, to hope that he can turn the corner. The one thing he said last night that's going to continue to remain controversial is "We're winning." There, getting back to what Bruce said, it's very hard to make the case that we're winning. You can make the case that we're not losing, but you can't make the case that we're winning.
DR: Bruce, the President also addressed the issue of faulty intelligence. He said much of the intelligence turned out to be wrong and as your president I am responsible for the decision to go into Iraq. Yet, he said, it was right to remove Saddam Hussein from power. He was given an ultimatum and he -- he -- made his choice.
BF: I think what Bush neglected is what people are focused on now, is what to we do given the quagmire. I was in Turkey a year and a half ago at the time of drafting the interim constitution. The factions there were represented. It's as clear as can be, Diane, that the Kurds want and insist upon an independent Kurdistan. At present there is no national law that applies in Kurdistan without the approval of the local parliament. The local militia -- the Peshmurga -- will not permit the Iraqi army to operate in Kurdistan. You have similar intense feelings in the south with regard to the Shi'as. The problem is that it doesn't make any difference how many military people we have there. The same way in South Vietnam. There is no commitment of the people of Iraq to fighting for a unitary government. They have their own provincial and tribal loyalties. In fact, the constitution enshrines those divisions by making local laws supreme over national laws in the event of a conflict. New oil resources that are developed belong to the locals, not to the national government. There's no trust that the national government can enforce its decrees. We're in a situation where we can't win because we're not dealing with a political culture that believes in a unified Iraq. I think the President talking about going in and throwing out Saddam is one thing. Fine! He's out! But the question now isn't whether Saddam was good when he was in power or not. It's what do we do with our 100,000 troops there who are getting killed.
DK: It seems to me, Bruce, that if you could have the three sections working together, not as a unified state but in a loose confederation, where Iraq itself was not a threat to its neighbors, was not a place in which terrorists or potential terrorists had free rein, then America's just national interests would have been served. I don't think it really should matter to us whether or not they're a unified state or whether they're three relatively independent provinces of whether they like each other or don't like each other so long as they're not a threat to us or their neighbors. I think that's possible without achieving this perfection. I think it's a mistake, in terms of American foreign policy, to go about seeking democratic perfection or unified states. I think we should be look at what's in our interest. NO: Joe Biden said after the speech last night that we need to move to a new phase in diplomacy. We've got to get the Sunnis, who ran this country as a minority and brutally for a very long time, to buy into the process. If they don't, then it's never going to work. And to do that will require changes in the constitution. Now, there was a substantial Sunni turnout in the election, which the Administration heralded, although much of it was an attempt to try and react against the Americans. But at least there's an opportunity there, and if we don't do vigorous diplomacy now within the country besides the military stuff then it's going to be a much, much harder, bumpier row to hoe.
DR: ...[break and re-introductions]... We're discussing not only the President's speech last night but recent statements. A recent article last Friday in the New York Times revealed that the Times had held onto a story about NSA spying on Americans for a solid year because of a White House request not to divulge that information. Did the President address his decision to allow the NSA to spy on Americans last night, Bruce, and what is the Constitutional authority by which he is allowed to do so?
BF: He addressed, I guess, the issue more completely in his Saturday radio address. ...What was done was athe President issued a secret order to the NSA in the aftermath of the 9/11 abominations in 2001 that authorized eavesdropping on Americans who were communicating abroad or receiving communications from abroad. The President stated that this was not done unless there was clear, known, provable evidence that the individuals associated with Al Qaeda or similar terrorist organizations. However, it's very clear that the only people who made that determination were those in the executive branch. There were no judicial warrants. There were no checks by the legislature to see what standards were being utilized. We know in times of war errors are made frequently with regard to conjectures about whether people are disloyal or may be engaged in improper activity. For example, the Japanese-Americans who were put in concentration camps during WWII who were also said to be loyal suspects and then found that there wasn't a single act of sabotage committed by any Japanese-American during the entire war. The difficult the President had in defending the constitutionality of this was that he undertook this action in secret and without any Congressional authorization. In 1978, when Congress addressed National Security wiretapping, it enacted something called the Foreign Intelligence Surveillance Act that provides for a court to issue warrants authorizing National Security wiretapping and eavesdropping in order to detect foreign infiltration into the US. The Act says that except as authorized by FISA...no person has the authority to eavesdrop. If they do so under the color of federal law, it's a crime.
DR: No person?
BF: No person. It is a crime.
DR: Does that include the President of the United States?
BF: Yes. It includes the President of the United States. Now, the President could argue that this is unconstitutional. But he hasn't done that certain in any public forum. So the President claims he had inherent constitutional authority that couldn't be limited by the Congress to undertake this eavesdropping effort. He said it was important to save the lives of American citizens, to foil foreign terrorists. But if you look historically at what other presidents have done and what the Supreme Court has said, that claim of inherent authority seems dubious. During the Korean War, Harry Truman seized a steel mill, saying that there's likely to be a strike and it would interrupt the munitions perhaps going to our men in Korea. And the Supreme Court held that was unconstitutional. The President can't simply make up a power to say, This is important to help the war effort therefore I can do it.
DR: David Keene?
DK: Bruce is essentially right. To be fair, if one is to believe everything that they've said, the people who they were surveilling under this order were people whose email addresses or phone numbers were found with terrorists. For example, they said they needed to move quickly because they would capture a laptop or get information. That was their nexus. But the problem was that they then went -- apparently -- after people who were communicating with them, so they created a chain of people that got bigger and bigger. Having said that as sort of a description of their justification, the claim that in trying to protect Americans and pursuing the powers as Commander in Chief, that the President has power that inherently trumps the rest of the Constitution is sort of an exaggerated claim of power on behalf of this president or any other president for that matter!
BF: It's more power than King George had at the time of the Revolution in asserting the theory that anything the President thinks is helpful for fighting the war against terrorists he can do...
DK: That's exactly right.
BF: That was why he claimed that he could ignore the torture Convention.
DK: We have in all of these things -- and this is not unique to this war but it's being carried to an extreme in this war -- we have the folks whose mission is, in their eyes, to protect us and protect our security, saying that trumps absolutely everything else. In our history, when we've allowed that attitude to prevail, we get into trouble.
DR: David Keene. As Chairman of the American Conservative Union and certainly one whose members have supported the President, generally speaking, in his actions, in his approach to the war, in what he's done financially/economically, how do you see this action of using a branch of government, the NSA, to spy on American citizens?
DK: I think it's presidential overreaching, and I think most Americans would oppose it. Just as we have been at the forefront for the recall of the Patriot Act reauthorization. This is not something -- I don't argue that they may have a "secret legal memo" supporting this. They can argue about it. But rational people should oppose it because, first of all, they can achieve these goals without these kinds of problems. You don't have to break existing laws. Nor do you have to say that neither existing laws nor constitutional guarantees don't count in time of war. A president can protect this country within the context of our Constitution, and within the context of the laws. If he needs different laws, then he ought to request those laws.
DR: Here's an email from John in Baltimore who says: "After an astonishing assertions of presidential power, Mr. Bush now declares that spying on Americans, an act illegal under federal law and declared unconstitutional by the Supreme Court, will continue. Where is the concern in Congress about the US being a national of laws and not men? about checks and balances? The last president was impeached over lying about sex. Does defying federal law and the Supreme Court qualify as high crimes and misdemeanors? Norm?
NO: I think that when David said this is presidential overreach, that was a very restrained and polite term. It goes beyond that, and it frankly reflects an attitude towards presidential power that is astonishingly and frighteningly expansive. They're trying to set precedents that will take us way too far. When you get two people with the impeccable conservative credentials of Bruce and David expressing these concerns, it tells you where we are. The fact is, what Congress is now doing -- the Senate in the next couple of days is going to take an appropriations bill which is supposed to focus on money matters and at the last minute, without it being considered in the appropriate context, throw in drilling in the Arctic National Wildlife Refuge. Which in effect is saying, the ends justify the means -- it doesn't matter what the rules are. They just did this in the appropriations bills which passed the House of Representatives after the conferees -- after the two Houses had gotten together and agreed they were going to keep it to the matters they discussed -- they took that out and then the Speaker of the House threw in a bunch of additional proposals on avian flu and other things that nobody had considered! So imagine a Congress, which is now governed by an ends-justify-the-means philosophy, and which has done almost no oversight of any element of this White House because they don't want to embarrass it, will step in now and say, No, you can't do this, I think is fanciful. I think it's going to take a coalition of conservatives and liberals on the outside who say "enough is enough."
DR: Bruce Fein, why couldn't the NSA do exactly what the president wanted if they had gone to this special, secret court?
BF: They could have.
DR: They could have?
BF: This court is inclined to ratify virtually every warrant it's been asked for.
DR: So why didn't the President go to the court?
BF: Because I think the President believes that he is the only unit of government capable of running a war. Because this isn't the only instance. When he claimed power to detain any American citizen as an illegal combatant without Congressional authority and no judicial oversight, you'd have to ask, if this was such a serious problem, why didn't he ask Congress to have authority to do this? What didn't he ask Congress for the authority to have a combatant review tribunal in Guantanamo Bay as a substitute for a court review for the detainees there? He doesn't believe in separation of powers, and that's what makes this so dangerous. He thinks the other branches are obstacles to the Constitution and to democracy when in fact they're essential to that! I think the only way that Congress will react -- because Norm is right, they're creatures of caution and they do their own "ends justify the means" -- is if the American people... It happened during Watergate in Nixon's day. This is an abuse. It's not isolated. This is a theory which has been propounded during the entire presidency of George W. Bush. Even if you said, well maybe right in the aftermath of 9/11 when judgments were imbalanced because there was great fright... We're talking about talking about something that's continued for four years! Even after the disclosure, the President says, I'm going to continue it, and you know what, I'm not going to ask Congress for any authority.
DK: Bruce's point that they could have done this legally under FISA -- and not only that but you hear this argument that they didn't have time -- well, they can take the action under FISA and then get the court to ratify the action.
DR: So they could have done it...
DK: They could have done what they needed to do and they could have done it legally. In addition to which, I think FISA over the past few years has only rejected one warrant request. In this instance, a FISA judge objected to it. Do you know how bad it has to be before one of those judges objects to anything? I mean, this is something that they should have done. In terms of Congress dealing with this, Congress has been involved for the past week in I think a fairly serious level of discussion over the safeguards in the US Patriot Act. And when this came out in the middle of last week, immediately Senator Specter, chairman of the Senate Judiciary Committee, announced that they will have hearings. They are going to look into this. I don't think this is something Congress is going to take lightly. I don't think we should simply say that because they're for Alaska drilling they're therefore not for the Constitution!
DR: Let's talk now about the President's change in course and his endorsement of Senator John McCain's amendment to ban cruel, inhuman and degrading treatment of terrorist detainees. Norm, does the McCain Amendment make all torture illegal?
NO: In effect, it makes torture illegal. Of course, it remains to be seen exactly how you define torture! But in a lot of ways what this came down to was people arguing that the limiting case. You've got somebody in custody. There's a suitcase nuclear bomb about to go off and devastate Washington or New York City. Are you going to stop and say, Gee, I'm sorry we can't get this information, and let millions of people die? Of course, under those circumstances, anybody who's got a detainee under custody is going to do what's necessary and then, afterwards, there'll be some kind of judicial authority which will judge them. What we know and what we've seen, interestingly, in op eds and other commentary from people who've been tortured -- not just John McCain who went through five and a half years of horrific torture in a Vietnamese camp -- but others around the world who basically said, If you endorse or condone torture, it doesn't work and you'll lose whatever moral high ground you have. Finally, President Bush, who's in a position where he was in effect asserting that the first veto of his presidency would be for torture realized that politically he'd put himself in a horrific position and basically cut a deal...
DR: He would have been over-ridden...
NO: Well, it was 90 votes in favor of the McCain position in the Senate and 2 to 1 in the House.
BF: And one of the ironies is that the Bush administration seems to concede that some of the phony evidence of weapons of mass destruction came from someone who was perhaps tortured by the Egyptian police. I don't know anyone at the CIA -- and I've got some friends there -- who said they thought torture was an effective way to get reliable information. I think "the ticking time-bomb" is the straw-man out there. The fact is that you would never know whether or not the information you received was reliable. Let us assume that even if you engaged in torture, you saved some. We know from experience that kind of maltreatment -- disgusting treatment -- of someone is going to create in our enemies more likelihood that they would engage in suicide bombings and other 9/11's. So even though you may save some, you may be creating an atmosphere that's going to lead to more terrorism rather than less.
DK: I think this fight has less to do with torture and more to do with something Bruce mentioned a little earlier, and that's the Administration's view that they're not to be bound by anything anybody else says. Because the President was in the peculiar position of saying, We do not condone torture, we do not do torture, but, by golly, you can't tell us we can't! This was about who was going to be telling whom to do what! He finally decided, I guess because of the votes, Well, on this one I'll have to roll. But I think it had less to do, really, with torture that with this whole attitude about who gets to say what. And oftentimes -- let's be fair -- oftentimes disputes between the executive and the legislative branches on who does get to say something about something else are perfectly valid disputes. In this instance, though, I think it goes to this whole attitude that Bruce was talking about earlier.
BF: And if I can compare that with Abraham Lincoln... He needed to take emergency measures at the outbreak of the Civil War, but he invariably returned to Congress after the fact and got ratification -- suspending the writ of habeas corpus and other extraordinary measures he took...
DK: Didn't really get ratified, more like...
BF: Well, I don't think that's a fair statement. But here we have a president who has never, no matter what time was available after the fact, sought Congressional approval of specific measures he took that he claimed were necessary in an emergency.
DR: What about subcontracting torture to other countries?
BF: Yes. Here he claims that they received reassurance from those who they hand our detainees into custody, that they won't perpetrate torture. We have no way of determining whether or not those reassurances have been complied with.
DR: [break] Here's an email from Carl in Michigan who's picking up on the earlier conversation and earlier email. He says: "So -- again -- is spying on the American people as impeachable an offense as lying about having sex with an intern?" Bruce?
BF: I think the answer requires at least what the occupant of the presidency says in the aftermath of wrong doing or rectification. On its face, if President Bush is totally unapologetic and says, I continue to maintain as a wartime president that I can do anything I want. I don't need to consult any other branches, that is an impeachable offense. It's more dangerous than Clinton's lying under oath because it jeopardizes democratic dispensation and civil liberties for the ages. It would set a precedent that, as Robert Jackson said, would lie around like a loaded gun, able to be used indefinitely for any future occupant.
NO: I think if we're going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed. In an ideal -- not quite ideal! -- I think the best way to handle this at this point would be for Congress to re-pass FISA, send it to the president. If he believes what he believes, let him veto it. They'll override that veto. Then if he continues to do what he's been doing, you move to a very different level of confrontation.
DR: But didn't he say in his Saturday speech that he intends to continue this kind of... these kinds of spying.
BF: He did. But sometimes presidents back down. I remember in Nixon/Watergate one time he said, I'm not going to obey a court order even if it requires me to turn over the tapes. And then he changed his mind in three days. So he may find that discretion is the better part of valor if public opinion goes against him!
DR: Let's go now to Highland Park, Texas. Good morning, George!
George: Good morning! I'm a liberal who is really sick and tired of being beaten up by George Bush. Again, in his speech last night, put up this straw man about "cut and run" and "we're going to have to win" and so on and then attacked us, even though those of us who have been opposed to this war all along have turned out to be correct! And then, on Wednesday, he said, "I have the same intelligence as the Congress" which is a blatant lie and no one will call him on it!
DR: Let's see what the reaction is here. Did members of Congress have exactly the same information that the President had? Bruce Fein?
BF: No, and you would never expect that volume of information from all over the executive branch to be provided to Congress. But I think at this stage, Diane, the country cares about what do we do now. And not rehashing whether x piece of information or y was there. And who's to blame whether or not there were weapons of mass destruction.
DR: Norm? Do you agree with that? Do people not care much anymore about what happened initially and they care more about what happens now?
NO: Well, they care about what happened initially but the priority has to be what we do now. It's a little bit specious to say, I've done a bunch of things which got us into a much worse quagmire than we'd otherwise be in, but now let's put that behind us. What I object to, as much as anything in the administration of the Administration's policies, is not holding anybody accountable for things. We now know that we've got these improvised explosives using four giant artillery shells. Where did they get those huge artillery shells? It's because after Saddam was toppled, they drove semi up to armories and hauled them off, something that took days while nobody was there watching. Nobody has been held accountable for those things! The lack of body armor! Nobody's been held accountable! But now the most important thing for the American people and for the future of all of us is to make sure we don't make it worse.
DR: Let's go to Grand Rapids, Michigan. Good morning, Brian. You're on the air.
Brian: Good morning, Diane... I'd like to know why did the New York Times sit on this story for a whole year when that could have changed the 2004 election had the American electorate known that they were being spied upon?
DR: What do you think, David Keene?
DK: I have no idea.
DR: Do you agree with Brian that, had this information been released earlier, it could have had an impact on the 2004 election?
DK: It's hard to say what could or couldn't influence an election. I suspect not because one of the reasons why we wanted to postpone consideration of the Patriot Act reauthorization until after the election is because after the election you could get a fairer, more reasonable look at it. In a political context, these things don't always work out the way you might hope they would. I have no idea why the Times held it. But you have to assume that when the Administration appealed to the Times on national security grounds, they took a look at it. That's not irresponsible. I'm not one who usually defends the New York Times! And eventually it did come out. I think it should have come out earlier. Those of us who were involved in the Senate debates and following it last week were not unhappy with the timing. I don't think it came out because of that timing, but I do think it could have come out earlier.
BF: It's a little bit odd. You'd figure that the New York Times may have learned about withholding information about the Bay of Pigs that could have saved President Kennedy a lot of grief. And here, to rely on the Administration's statements, given their credibility, that this was indispensible to national security which seems to be undercut by the fact that, now that it's publicly known, President Bush has continued the program thinking that it still is effective! Even though it's public!
DK: And, of course, senior Democrats knew about it because they were briefed.
NO: This has been a year from hell for the New York Times. This only makes it worse. Unfortunately, all of this comes about at a time when the credibility of the management of the Times is under siege. So explaining this, and of course including the reality that the author of these pieces, the guy who uncovered it, has a book coming out, is raising questions that they're going to have to work overtime to deal with. This is a paper that has been America's newspaper in terms of its prestige for so long. It's really got its own work to do to reestablish its credibility.
DR: Here's an email from Ron who says, "If Bush is bypassing the Patriot Act to spy on US citizens in the US, he is saying he is above the law. In that case, does it not make him a dictator?"
BF: I'm not sure about the Patriot Act. I think he's probably referring to the Foreign Intelligence Surveillance Act. But it is this attitude that the President is not required to comply with separation of powers doctrines.. even the unwritten customs of the Constitution that don't enable the president to push the envelope as far as he can go until the Supreme Court says, No! It's certainly contrary to anything we've experienced in our prior two centuries as a democratic dispensation.
DR: To Charlotte, North Carolina. Good morning, Spencer!
Spencer: Good morning! How many of you guys have digital cellphones?
DR: I think probably everybody here!
Spencer: Okay. With digital technology, you don't need a telephone bug because the packet data lands on a hard drive and is recorded on a hard drive. It doesn't take much to pull it off and hear everything that you say. So all bets are off!
BF: But the reason why we have a rule of law in this Constitution is to say that the government can't do certain things whether or not it's technologically feasible. There are certain procedures that make sure the snooping isn't just for some nefarious purpose.
DR: Well, there is another aspect here which one of our producers raised last Friday, in saying that if you're looking at connections between this country and somewhere abroad, you're also monitoring those calls within this country. It's not just foreign and international calls. It's all calls!
DK: I think Bruce's point is a good one. But your caller makes a point that really goes to why a lot of this happens. In the last few years, the technological advances have been so great. And when people are looking at these things, it becomes "We can do it, so then we should do it!" Because we can get more information. That's why it is more necessary than ever to have very hard lines about what can and cannot be done because that stuff is there to be accessed. In the past, you might have wanted to snoop on everybody but you couldn't.
NO: A couple of frightening elements to this. The rationale is that it's wartime. But we're in a war on terror that could go on forever. So there's no such thing as a line there anymore that justifies an extreme act. The second element of this is, it really makes the case for checks and balances, for an aggressive Congress. When the Patriot Act passed, of course very soon after the horrific acts of 9/11, at least having a Congress in place meant you got something passed that put sunset provisions on the most difficult aspects of this bill. So after a period of time you could step back and look at them and say, Gee, this one went too far; this one didn't. When you're out of the immediate emotional presence. Now what the Administration wants to do is to remove all sunset provisions and make these things permanent. And at least now, you're finally starting to see a supine Congress raise some objections. But we haven't yet seen how many objections they'll raise to the violations here of FISA.
DR: We have a caller in Taylor, Michigan. Hi there, John! You're on the air!
John: I'm in favor of the McCain amendment to prohibit torture because basically all the techniques they've been using are of WWII or Korean War vintage where anybody in the modern hospitals, the insurance companies, they question a lot of patients to see if they're working after they come out of an operation and when they're still under sedation... and the doctor is questioning them, and this is all filmed and recorded. Using these techniques [ ] $40 billion a year for the CIA. They're incompetent.
BF: [laughs] Well, I don't think that the CIA resisted this particular limitation. They understand -- they're pros -- what's needed to elicit information that's accurate and reliable and none of these standards really helps on this.
DR: Here's an email from Stephen who says, "I keep hearing conservatives using the nuclear bomb rationale for torturing. Don't use this excuse. President Bush used the nuclear weapons rationale for going to war in Iraq even though he knew there was no yellowcake uranium."
DK: Actually, that was our moderate...
DR: I know, I know!
NO: That was the limiting case. But the point we made was, it doesn't work, even under that limiting case...
DR: And then an email from Dave, here in Washington: "Is it possible to win the war on terror while working within the principles and ideals that America stands for? Do we have to stoop to the level of the terrorists -- kidnapping people, holding people without due process law, and spying on Americans?"
BF: You certainly don't need to stoop to any of those kinds of brutalities in order to wage the war successfully. We didn't in WWII, and we confronted an enemy far more serious than Al Qaeda in Adolf Hitler and Tojo. The fact is that a president, if he finds the need to exercise extraordinary measures, can go to Congress, have full hearing, and determine in a far more measured way the need justifies some special technique.
DR: ...And to Brighton, Michigan. Good morning, Jeff!
Jeff: Good morning, Diane... I hate to bring up the word "impeachment" again. I'd like to mention it in terms of the context of the 2006 elections and what might happen if the Democrats regained a majority in either chamber of Congress -- and the implications of something like that. And the behaviors President Bush and the Republicans might demonstrate in order to maintain the majority.
NO: I don't think that, unless you see further abuses of power in a continuing way and a strong public outrage. One of the lessons the Democrats learned from the impeachment of President Clinton is that the American people don't like partisan impeachment efforts until you get a point where you get a strong bipartisan agreement that it's time for somebody to go. So this is something that will follow public opinion, it's not going to lead public opinion. If Democrats recapture majorities, it will be by very very slender margins. What's going to matter here is the performance of President Bush from this point on more than anything else, including what happens in 2006.
BF: I think Norm is accurate in substantial respects. One of the earmarks of the Nixon successful quasi-impeachment -- he was impeached by the House Judiciary Committee and then he resigned before it got to the Senate -- was that it was Republicans -- Hugh Scott and Barry Goldwater -- who went to the president and said, You have no votes, you'll have to leave office if you don't want to be humiliated in the Senate. And on the House side, you had a bipartisan vote, including then William Cohen who was a member of the House Judiciary Committee against President Nixon. I don't think that simply because the Democrats might regain Congress that would shield the President from any impeachment process if he continues, as he seems to be, to claim these extraordinary war powers. The Republicans may take a message, Gee, if I jump onto the presidential claims, even after 2006 we're a dead party! You could generate sufficient consensus for impeachment. But the key is what is the President going to do now? when the blatant and flagrant disregard for separation of powers is so clear? And this is why I say, it makes a difference whether or not he accepts that he has overstepped his bounds and says, I really did wrong. Then it doesn't set this precedent that justifies these extraordinary measures...
DR: Do you expect him to do that, David Keene?
DK: Expect him to continue to defy?
DR: No. Expect him to say, I was wrong?
DK: Well, I think if we look at the fight over the torture legislation which, as I said earlier I think comes from the same kind of conflict, this is not a president who, when he's faced with it, he doesn't adjust. Most presidents do, this one as well. I think the question is, at what point does that happen. But I would be willing to bet that he makes his acts come into consistency with reality.