The Scribe

12/30/05:NPR: Daniel Benjamin: Links Between the Iraq War and 'The Next Attack'

Interviewer:  Robert Siegel

Robert Siegel:  A disquieting answer to the question, Are we winning the war against terrorism?  Daniel Benjamin used to work on the National Security Council staff during the Clinton administration.  He and Steven Simon have written their second book about counter-terrorism post-9/11.  It's called "The Next Attack" and Daniel Benjamin's answer to the question, Are we winning against the terrorists is an emphatic "no"!

Daniel Benjamin:  We know we're not winning the war by looking at a variety of factors that suggest, in fact, that there is a gathering storm out there of jihadist antipathy and, in fact, violence.  For example, we see a growing number of groups that have essentially picked up the Al Qaeda ideology without being connected directly, either organizationally or even by communications often with Al Qaeda.  We see these in Europe.  The Madrid cell is a classic case -- that's the one that blew up the trains in 2004.  The London cell which carried out the bombings in the subways.  We've seen it even in Pakistan where there is an established jihadist infrastructure.  There are other indicators as well.  We see that there is a large group of people who are increasingly attracted to the jihadist internet.  We also see the spread of Islamist violence in an area where there wasn't much and that is, incidentally, the Middle East!  We have seen a jihadist revival in Syria, a country that didn't have it for 20 years or so, didn't have Islamist activity because it had been crushed in the early '80's apparently.  We've seen the spread of bomb technology from Iraq to Saudi Arabia.  And perhaps most importantly we see a jihad underway in Iraq and the establishment of a jihadist sanctuary in western Iraq. 

RS:  What you're describing is not merely the growth of the Al Qaeda-directed organization chaired by Osama bin Laden, deputy Ayman al-Zwahiri, you're talking about groups which are simply cropping up without connection.

DB:  Yes.  They're inspired by the ideas that bin Laden and al-Zwahiri espoused and they view them as being global leaders but they have no direct connection to them.  So they're acting on their own.  They're acting because now you can self-enlist as a terrorist using all the information available to you over the internet.

RS:  But of all the places that you list where you see a jihadist or jihadism on the rise, you didn't mention New York, you didn't mention the Pentagon, or Los Angeles or Chicago.  So, in that sense, there hasn't been been a repeat of the sort of attack we witnessed on 9/11.

DB:  No.  That's definitely a success story.  But we shouldn't make the same mistake we made in the late '90's of ignoring what's going on overseas.  We have been fortunate not to be hit again.  We think there are a number of reasons.  One is that we are a more vigilant country because of what happened on 9/11.  I think it is also harder to get in here.  American Muslims have, to a certain extent, rejected the jihad idea.  But it's also true that the global jihad is getting what it needs in Iraq. 

RS:  As far as you're concerned, you and your co-author, Steven Simon, you believe that the war in Iraq was a distraction in the war against terrorism.

DB:  At a minimum it was a distraction!  In many ways it was a big step backwards because it gave the jihadists an enormous presence.  It confirmed their narrative to much of the Muslim world.  That is, bin Laden and his followers say, The US is our eternal enemy that wants to occupy our countries, destroy our faith, and steal our wealth.  And because we went into Iraq, we allowed them to point at Iraq and say, You see?  We were right!   That has made real inroads in the Muslim world.

RS:  You write about the enclave in the north of Iraq where, prior to the US invasion, a terrorist group had set up.  And the debate went on, what does it do about Anser al-Islam operating from this little nook of what we think of as the Kurdish north of Iraq. 

DB:  Yes.  There was a camp in a place called Kermal and the camp belonged to a Kurdish jihadist group but the person who had affiliated with them was none other than Abu Musab al-Zarkawi who has gone on to be the face of the insurgency in Iraq.  We had very good intelligence about what was going on there.  We know that they were, for example, making ricin, the biological agent which has been used in a number of conspiracies. 

RS:  And this was happening on Iraqi soil, but with a big proviso.

DB:  Well, it was Iraqi soil in a technical sense, but it was the autonomous Kurdish enclave under our protection from the air.  As a result the Pentagon, the uniformed military, was eager to strike at this enclave and thought that was the war on terror was about.  And twice the proposal was put forward to strike it, and twice the Administration declined.

RS:  When was this happening?  What years are we talking about?

DB:  Well, it happened I believe in 2002 and again, I believe, in 2003.  The first time, 2002, was the critical moment because it hadn't leaked to the press yet that we were watching this.  But the curious thing was not that first the Administration declined to take out this camp and second of all that we were just watching Zarkawi completely misunderstanding what he was doing there.  It was clear that he was preparing the insurgency but because the Administration was so focused on what it considered the greater threat of Saddam, we just gave them a pass. 

RS:  A tremendous amount has happened since 9/11.  Two foreign wars, the creation of the Department of Homeland Security, reorganization of intelligence.  Your account of all this is not terribly encouraging about how much less vulnerable we might be after all this has happened.  Some glimmer of improvement here? something you can say about something that's been gotten right since 2001?

DB:  Well, our biggest advantage is, of course, that we're now a nation aware of the threat.  One of the concerns that we voice is that the lights are kind of going out on this.  Polling indicates that people are less concerned about terror than before.  But there certainly has been institutionalized a big concern.  I think we've lost an enormous amount of time organizing and reorganizing ad infinitum and the recent press accounts of the turmoil at the Department of Homeland Security I think are very much to the point.  I think that there is at least now the basis for building on that concern and a recognition of the threat.  But we are so far down the wrong road in terms of dealing with this threat that it will take some mighty efforts to get ourselves going on the right road.

12/30/05: NPR: "Justice Department Confirms Hunt for Spy-Story Source"

Interviewer:   Robert Siegel

Robert Siegel:  The Justice Department has opened an investigation into a leak of information about domestic surveillance by the NSA.  Two weeks ago, a story in the New York Times [available here through Times Select]  revealed that the NSA has been spying on American citizens within the US without warrants for four years.  Now the Justice Department is not conducting an investigation into that spying, but rather it's looking into who might have leaked that story to the Times.  NPR's David Folkenflik is with us right now and, first off David, has there been any question about the accuracy of that Times story?

David Folkenflik:  None whatsoever.  Obviously the President, the Administration, is quite heated about the fact that it got into print, but there's been no challenge of the facts and some legal scholars and some former government officials say it's pretty clear that a 1978 law against domestic wire-tapping without warrants has been broken.

RS:  So the question the Justice Department is looking into is all about how that information was made public?

DF:  That's right.  This is a pretty classic clash between values -- the values of protecting national security and asserting government authority to do what is necessary and the question of the public's right to know -- the media watchdog role being fulfilled.

RS:  How do we know, if in fact, that national security has been endangered?

DF:  Well, we don't.  President Bush has asserted that it has but he hasn't publicly made that case.  In fact, he did do so privately to the publisher and the executive editor of the Times and they held the story for over a year and pursued additional reporting.  They held some information, but they decided to publish. 

RS:  So, if Justice is investigating who leaked this information to the Times, are they investigating people in the Administration, in Congress?  Or are they investigating the Times?

DF:  Well, it appears that they are most likely to be investigating the act of the leakers -- that is, current and former federal officials leaking classified information.  But one clear way to do that, as we know, is to do that through reporters who know who they spoke to.

RS:  Of course what's compelling here is that the Times just went through quite a dramatic event with the jailing of the reporter, Judith Miller, when she wouldn't reveal her sources.  Obviously they probably can't be eager for another confrontation of that sort.

DF:  I don't think they want it at all.  A spokeswoman for the Times said the newspaper wouldn't be commenting on this at this time, but nonetheless, Special Prosecutor Patrick Fitzgerald in that CIA leak case was able to get everything he wanted from every reporter involved.  It's not clear that there's much wiggle room here for the press.

RS:  Let me ask you this.  In the story disclosing the name of Valerie Plame Wilson, there was always a very small universe, it seemed, of potential leakers.  In the Times story about NSA surveillance of Americans, there was broad attribution to many people. 

DF:  I thought it was very interesting.  They referred to nearly a dozen government officials which would take in a number of branches of government.  Could be judges who learned of it and were upset.  Could be people on the Hill, people in the Administration.  They did say it was a very small circle of people who knew, just a handful of Congressional figures, a very few Cabinet officials, a few senior people at NSA, CIA and Justice.  So I imagine that would be the universe of candidates. 

RS:  What does it mean that Justice is looking into this?  We don't have a special prosecutor named, a special counsel or anything of that sort.  Are they interviewing people?  Do we know what they're doing yet?

DF:  We don't know what's going on.  Presumably people will be subpoenaed if you take past investigations as a guide.  People will check call logs and emails -- what phone conversations occurred -- and see if they can construct a case that James Risen and Eric Lichtblau, the two reporters who wrote the Times story, had contacts with these government officials.  But it's not yet known.

RS:  Is there any talk about an investigation?  Not just into the leak, but into the program of surveillance?

DF:  Well, Senator Arlen Specter -- he's a Republican from Pennsylvania and Chairman of the Senate Judiciary Committee -- said he does want to have oversight hearings on that very issue.  It hasn't been scheduled yet.  He's not exactly getting the vocal support of Republican leaders on the Hill.  And the Administration itself has shown absolutely no eagerness to investigate unless they say any more information that gets into the public will imperil the ability to protect the public.

12/30/05: NPR: "Deciphering the NSA's New Wiretapping Motivations": Timothy Naftali

Interviewer:  Steve Inskeep

Steve Inskeep:  When President Bush said he authorized eavesdropping without warrants in the US, he raised as many questions as he answered.  The President was responding to a report in the New York Times which has since said the program was even more widespread than the President acknowledged. What is not clear is exactly why the NSA is conducting the surveillance without warrant.  Ever since the 1970's, a secret federal court has been empowered to review evidence and permit surveillance within the law.  One person who's looking at the clues is Timothy Naftali who has written about intelligence matters.  To understand what the NSA is doing, he tries to understand the problem that the government would be trying to solve.

[NB:  There have been reports as late as today that NSA, in spite of protests to the contrary, continues to put "cookies" on the hard drive of visitors to their site.  The link above is not to NSA's site, but to an informational site about NSA with a link to the agency's site for those who'd like to see it.]

Timothy Naftali:  If you accept, as I do, that there is the possibility of Al Qaeda or its affiliates having cells in this country, how do you monitor these people if they're changing their cellphones and if they're moving from computer to computer?  How do you do that?

SI:  The Patriot Act appeared to address that very problem.  It made it possible to give a warrant that will follow an individual from one telephone to another..

TN:  What if you don't know the individual, Steve?  What if you're looking for patterns of behavior?  What if you don't know the individual's name?

SI:  What if you don't know the number?  How do you follow one person around when they're going into WalMart and buying a cellphone?

TN:  You don't follow one person around.  What you do is you listen to conversations.

SI:  You mean you listen to a million random conversations? in order to hear this guy?

TN:  The White House is saying that it is very careful not to listen to point-to-point conversations in the US -- from one point in the US to another.  But there is a way through data-mining to analyze where calls originate and where they go.   This is basically an attempt to look for patterns, use of words, length of telephone call, length of email. frequency of these communications, both voice and data, and then to look for suspicious patterns.  How do you define suspicious? I don't know.  But the now deputy director of National Intelligence, Michael Hayden, has talked about their being a subtle, soft trigger.  The computer learns what's suspicious and then it will act on its own.  So what we're talking about is a higher order, a smarter Google, if you will.

SI:  It matters a lot where the phone call is made to and from, right? whether it's inside the US or outside the US?  How do you judge that question when it's an email that might bounce around the world, end up in a server in London on its way to San Francisco?

TN:  That question is the reason why I'm convinced that the NSA is only looking at data transmissions that leave the country.

SI:  Because you're saying the NSA can't necessarily know whether the email that's cranking through this system that we presume it has originated outside the US or going outside the US.

TN:  It doesn't take great technological sophistication to bounce emails around, to hide where you're sending them and where they're coming from. 

SI:  I'm looking now at this letter from Sen. Jay Rockefeller, the senior Democrat in the Senate Intelligence Committee.  He wrote a letter in 2003, a handwritten letter essentially recording what he'd been told about the program.  And in the process of this, he says, I was told about this program and then got more concerned (I'm paraphrasing) it reminded me, he says in effect, of John Poindexter's TIA project.  What is that?

TN:  This was a data-mining project that was designed to develop an understanding about suspicious activity. 

SI:  Poindexter is a former White House official who formerly

TN:  A former National Security advisor.

SI:  We can assume that whatever the NSA was doing  was similar.  At least it was similar in the mind of Jay Rockefeller who was briefed on the NSA program.

TN:  Of course.  In preparing the new President Bush, the NSA produced a transition document where the NSA is teeing up this question for the new administration.  It's not talking about data-mining.  It's talking about the inability of the current legislative framework to deal with the kinds of data-gathering that the NSA is doing to have to do now and in the near future.

SI:   Does the fact that the Administration went outside the system provide further clues as to what they may have been doing?

TN:  Certainly!  When this first leaked, it looked as if the Administration had a certain number of problem cases, a few hundred, that didn't fit in the FISA system.  But as we learn more, it became apparent that you have a program that as generated hits, some of which are US persons. 

SI:  And you're supposed to get a warrant...

TN:  You're supposed to get a warrant.  How do you sustain those investigations under the law?  when the law is designed to deal with identified suspects?  That's the challenge.

SI:  This has been a mystery to some people.  How can we be talking about current law being outdated when the FISA, by all available evidence, has nearly always granted warrants when asked.  Doesn't seem like that high a bar.

TN:  It's not a high bar at all if you know the name of the individual.  But -- again -- what if you're looking for suspicious data transmissions?

SI:  If you're just looking for these patterns you can't even ask for a warrant?

TN:  I don't think so.  I don't think the law is designed for that.

SI:  Mr. Naftali, thanks very much...  Timothy Naftali is author of "Blind Spot:  A Secret History of American Counterterrorism."

Available online through NPR:

The Rockefeller Letter (pdf)
Read a copy of a 2003 letter from Sen. John Rockefeller, D-W.Va., expressing his concern over a briefing about government surveilance activities.

NSA Transition Document (pdf)
This document is located at George Washington University's National Security Archive.

12/19/05: NPR: Diane Rehm Show: Three prominent conservatives on Bush's impeachment, Iraq, the New York Times, NSA domestic spying, and presidential law-breaking

Host:  Diane Rehm

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.

DR:  Norm?

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.

11/30/05: Fresh Air: Philip Shenon (NY Times) on connecting the dots: Abramoff, Scanlon, DeLay, Kidan, Boulis, Reed, Norquist, "Red Scorpion," "El Paso troglodytes", Northern Mariannas, and the Dukester

Host:  Terry Gross

Guest:  Philip Shenon of the New York Times

Terry Gross:  We admit it.  We've been having trouble keeping up with Washington influence peddling scandal.  The ongoing investigation into the lobbying activities of Jack Abramoff and his partner, Michael Scanlon, is heading in so many directions and involving so many other people, it's hard to keep track.  But this story is fascinating on a purely dramatic level, and more important, it reveals some of the seamier side of today's politics.  We asked Philip Shenon to map out the story of the Abramoff scandals and investigations.  Shenon is an investigative reporter for the New York Times.  He's been covering the Abramoff-Scanlon story and the investigation into former House Majority Leader, Tom DeLay.  Scanlon is a former aide to DeLay. 

Philip Shenon:  before we get into all, or at least some!, of the details of these various lobbying investigations, why is this larger story important? It takes some effort to follow these stories.  Why is it worth it? Philip Shenon:  It's worth it because it's been a concern for a very long time that money buys too much access in Washington, that lobbyists have too much power, that the revolving door between Capital Hill and the lobbying community is spinning much too fast and involves much too much money.  And there are many peope who would tell you that the saga of Jack Abramoff and Michael Scanlon tells you that things are out of control, that money is having too much influence on public policy, that members of Congress are offering themselves up to do favors for lobbyists in exchange for gifts, and that they will constitute bribery.  Something needs to be done.  And people are talking seriously now about new legislation that will place much tighter restrictions on what lobbyists can do and what Congressmen and other public officials can accept. 

TG:  Last week there was what appears to be a very big breakthrough in the investigation into the Abramoff-Scanlon story.  Michael Scanlon pleaded guilty to conspiracy to bribe public officials and defraud his Indian tribal clients.  And he said that he would cooperate with the investigators.  Exactly what did he plead guilty to doing?

PS:  He pleaded guilty to a conspiracy with someone identified as "Lobbyist A."  "Lobbyist A" we now know is Jack Abramoff.  To bribe members of Congress.  To giving them lots of gifts, jetting them around the world on exotic travel, sending campaign contributions into their campaign offices, in exchange for specific acts on Capital Hill.  That's something much more than a gift.  That is bribery.

TG:  Before we get any deeper into what Michael Scanlon did, let's talk briefly about who he is and how connected he is in Washington.  How connected is he? What is his place in the power structure?

PS:  He's not a particularly well-known figure.  He just happened to be well-known to a handful of folks who were in power on Capitol Hill.  He's a young man.  He's in his thirties.  He's a Republican operative with some history here.  He worked as a press secretary to Tom DeLay for a period of time.  He was quite close to DeLay.  He left that position several years go and decided to enter the world of lobbying and public relations where he hooked up with Jack Abramoff who's really the focus of all these investigations. 

TG:  And Scanlon is a very wealthy man.

PS:  He's apparently fabulously wealthy.  In fact, he was required under this plea agreement to give up $19M, but it's not at all clear that that will leave him broke at the end of this. 

TG:  So he's promised to cooperate with prosecutors.  And the Washington Post in an editorial said that he may now be the most dangerous man in Washington!  What makes him so dangerous?

PS:  Well, he knows the inner workings of the Abramoff lobbying operation.  He may well be able to finger individual congressmen for having taken gifts in return for specific acts.  He may be able to identify members of Congress who were bribed.

TG:  Let's get to Jack Abramoff.  What's his position in Washington?

PS:  Jack Abramoff is likely to be remembered as the man behind the biggest influence-peddling scandal that Washington has seen in a generation.  You may have to go back even further than that to find a good comparison.  He was the lobbyist's lobbyist.  He knew where the levers of power were on Capitol Hill and the Executive branch.  He knew how to pull 'em.  He got what he wanted on Capitol Hill and elsewhere largely by wining and dining members of Congress and by jetting them all around the world on these lavish trips -- nominally for business.  In exchange for that Abramoff got these jaw-dropping lobbying fees.  We know that he and Scanlon, his junior partner, got something more than $80M during a three-year period, 2001-2004, from just a handful of Indian tribes and their gambling operations.  If you want to know about this unseemly, unholy alliance between money and politics, Jack Abramoff is likely to be a poster-boy for that.

TG:  Let's talk a little about this relationship they had with Indian tribes who owned -- or wanted to own -- gambling casinos.  What was the arrangement Abramoff had with these Indian tribes?

PS:  Abramoff, in the mid-1990's, saw a real opportunity to start representing the interests of Indian tribes and their casinos around the country.  Because they are just money machines, producing billions of dollars in revenue a year.  He would pitch himself to Indian tribes as the man who could make things happen in Washington -- or elsewhere in state capitols or wherever the Indian tribes needed friends.  Often the lobbying efforts Abramoff oversaw were efforts to prevent a rival casino from opening as opposed to getting a particular casino open.  And he worked out a fee arrangement in which he would take some portion of the money, but the bulk of it would to to what was described as "a public relations operation" run by Michael Scanlon.  The $80M that Abramoff and Scanlon took in in lobbying fees -- most of that money, $60M of it, went to Scanlon.  And the reason for that, I think people suspect, was because lobbying has to be declared in the financial records of the federal government.  Public relations doesn't have to be declared.  It can be done off the books essentially.

TG:  So Scanlon was officially running a public relations organization as opposed to a lobbying organization?

PS:  Exactly.

TG:  You had said that part of the problem with this casino scheme was that the Indian tribes weren't getting what they paid for.  But on the other hand, it sounds like Abramoff and Scanlon got lawmakers -- Congressmen -- to do favors for the tribes in return for free travel or payments to their campaigns.  So in that sense it sounds like the tribes got something...

PS:... What they paid for.  No, I think we can draw the distinction that in some cases, certainly early on in Abramoff's career, the Indian tribes did get what they wanted.  In fact my own newspaper did a story back in 2002 -- on the front page -- about this incredible lobbyist named Jack Abramoff who was reaping these extraordinary lobbying fees from Indian tribes.  The story quoted many of the Indian tribe leaders as saying whata terrific lobbyist Jack Abramoff was and how he was able to get for them exactly what they wanted.  I think more recently the allegation is made that Abramoff and Scanlon, yes, on occasion, could get things done, could get access to members of Congress, but in the end simply pocketed most of the fees they were given. 

TG:  So who is now investigating this Indian casino operation that Scanlon and Abramoff ran?

PS:  Well, the principle investigation and the one that's caused so much alarm on Capitol Hill is one that is being overseen by the Justice Department.  It also involves the Treasury Department, the IRS, the Interior Department, and a task force that includes a host of other federal agencies.  They've been running a grand jury in Washington for something more than a year and a half.  That's the grand jury whose investigation resulted in the plea bargain with Scanlon last week.  There are other investigations.  There's been an investigation on Capital Hill run by Senator McCain of the Senate Indian Affairs Committee that has brought to light some of the worst abuses that have been associated with Abramoff and Scanlon in a series of high profile hearings over the past year.  And there are rumblings about other sorts of investigations being overseen by state prosecutors around the country.

TG:  One person under scrutiny now in this larger investigation of conspiracy to defraud Indian casinos is Ralph Reed.  Before we get specifically to what he's being scrutinized for, he's had a long relationship with Jack Abramoff.  How far do they go back?

PS:  Oh, they go back to the early 1980's.  Abramoff made his name early on in the Republican Party when he was chairman of the College Republicans which he made into a pretty potent force during the presidency of Ronald Reagan.  Among the people with whom he worked most closely was a young man out of Georgia named Ralph Reed.  The two men struck up an easy friendship.  Reed apparently used to sleep on Abramoff's couch in Washington.  Reed introduced Abramoff to the woman who would later become his wife.  The two men have been very close friends for many years.  After Reed left the Christian Coalition, he went back to Georgia and opened up a lobbying shop and started doing business with Abramoff's lobbying shop.  Abramoff's interest was in protecting the interests of his Indian tribe clients and their casino operations and Reed was involved because he was part of the grass roots campaign that would protect the interests of some of those Indian tribes.  In other words, if a tribe wanted to prevent a rival tribe from opening a casino, Abramoff would work with Reed to organize what was described as a grass roots operation to block all new casinos in that state or that region.  Reed obviously is a man who proclaims his opposition to gambling and insists that he had no real understanding that the money flowing to him from Abramoff was coming from Indian tribe gambling operations.  But some critics of Reed find that a little bit hard to believe given his long ties to Abramoff and the fact that Abramoff was known in Washington as "Casino Jack" because most of his business was with Indian tribes and their casinos. 

TG:  Did critics who are saying that money from the casinos was indirectly funneled to Ralph Reed use this an example:  that Jack Abramoff used the group, Americans for Tax Reform as a conduit to send money from the Mississippi Choctaws, one of Abramoff's clients, to the Alabama Christian Coalition.  Now was Ralph Reed tied in with the Alabama Christian Coalition as one of the ways he might have indirectly received money?

PS:  That was one of the groups that was working closely with Reed to organize these grass-roots operations to block new casinos from opening.   So Reed would benefit from the money given to a third party -- it's a confusing money trail -- but the money would go from Abramoff's operation to Americans for Tax Reform or another group and somehow this money would get, indirectly, to Ralph Reed.  Or so it's alleged.

TG:  And this introduces another character into the story, Grover Norquist, who's the head of Americans for Tax Reform.  Americans for Tax Reform is a group which is staunchly against taxes.  Just about any tax you can name they would oppose.  Grover Norquist is very connected in Washington, way beyond just the issue of taxes.  Where does he fit in to larger Washington politics?

PS:  Well, among the Movement Conservatives, there are few people who are more influential and have more friends than Grover Norquist.  Americans for Tax Reform is one of the principal private groups in Washington pushing the conservative agenda, largely focusing on smaller and smaller federal governments. 

TG:  And how does Grover Norquist know Ralph Reed and Jack Abramoff and Michael Scanlon.  Do they go back?

PS:  They go back, again, to the early 1980's and the College Republicans.  Abramoff is chairman.  Norquist is a leader as well.  Ralph Reed arrives at College Republicans as, essentially, an intern.  And the three men forged a very close friendship that lasts to this day as best we can tell.

TG:  So where does Grover Norquist fit into the investigation?  What activities of his are being scrutinized?

PS:  Well, I think the concern is that if there is something improper about the way Abramoff was underwriting these anti-gambling crusades in some Southern states and in Texas, I think the concern is that if there's anything illegal about that, the fact that if Mr. Norquist was used as a conduit for those funds, that could bring him under scrutiny.  Senator McCain, who has a long, antagonistic history with Mr. Norquist, has attempted to get Mr. Norquist's tax records and has suggested that is worthy of further scrutiny by the Justice Department.

TG:  And Grover Norquist is expressing his outrage.

PS:  Oh, absolutely!  I don't think we have any strong sense that Mr. Norquist is personally under scrutiny here.  At this point, I don't think we know that about Mr. Reed either. 

TG:  So they're not necessarily being investigated.  They're just characters who are now -- what? -- on the periphery of the story?

PS:  That's a distinction... All of these people are under scrutiny to the extent that the Justice Department has a vast, vast record of documentation from Abramoff's office showing his connections with Reed, with Norquist, with others who are at least indirectly connected to what the Justice Department now describes as this effort to defraud the Indian tribes and to corrupt public officials.  So I guess that means they're all under scrutiny.

TG:  There's another issue related to this that Grover Norquist is involved in, and that's the group CREA, the Council for Republicans for Environmental Advocacy, a group he cofounded with Gale Norton, the Secretary of the Interior.  What is being questioned about this group?

PS:  The question is whether or not Abramoff used this small Republican group to get decisions made at the Interior Department on behalf of Abramoff's Indian tribe clients.  And this was the focus of the final hearings of Senator McCain's committee several week ago, the question being whether Abramoff would use this group known as CREA, led by a woman call Italia Federici, who at one point was quite close to Interior Secretary Gale Norton, to lobby the Interior Department to get things done for Abramoff's Indian tribe clients.  The Interior Department has a lot of oversight over Indian tribe reservations.  There's a lot of email showing that Abramoff would call this group, CREA, and that CREA would then call into the Interior Department and try to get things done largely through the offices of the Deputy Secretary of Interior, Stephen Griles.

TG:  So this means that there are members of the Interior Department, including the head of it, Gale Norton, who might at some point be under scrutiny.

PS:  I think Senator McCain's staff has been very clear, and Senator McCain himself has been very clear that Ms. Norton is not herself under scrutiny.  I think a lot of questions have been raised, however, about the actions of her deputy, Stephen Griles, a former lobbyist himself and now a lobbyist again.  And there were a lot of concerns expressed about Mr. Griles and his testimony when he appeared before Senator McCain's committee a few weeks ago. He suggested that he treated Jack Abramoff as he treated all lobbyists -- no special favors for him.  He couldn't recall direct communications with Abramoff, but in fact the email traffic from Abramoff's shop shows that there was a lot of contact with CREA with Griles suggesting there was a much closer relationship.  In fact it became known at this hearing that Abramoff had offered Griles a job in his lobbying shop while Griles was still at the Interior Department.  TG:  Let's get into another chapter in the investigation into Jack Abramoff.  That's a business deal he entered into with Adam Kidan.  They bought Sun Cruise which was a fleet of casino boats and they're charged with conspiracy and wire fraud in the purchase of these boats.  The trial's scheduled for January.  What's this story about?

PS:  [laughs]  Oh, my goodness!  The saga of Jack Abramoff!  It goes everywhere!  This doesn't directly relate to the influence-peddling scandals in Washington, but Abramoff, ever the wheeler-dealer, decided to get into the casino gambling business back in 2000 and the Sun Cruise gambling ship fleet became available, and he and a business partner, Adam Kidan, sought to purchase it.  According to the Justice Department, they dummied up a bunch of papers that made financing of the purchase possible.  That's why they've now been indicted for fraud down in Florida.  Again, that does not relate to what's going on in Washington, although I suspect the Justice Department may well try to use the indictment down there as leverage to get Abramoff's cooperation up here.

TG:  Part of the intrigue around this particular case is that Constantino Boulis, one of the business partners that they bought this fleet of gambling boats from, was murdered gangland-style...

PS:  February, 2001.  Sure enough.  His car is pulled over and he is gunned down.  More recently three men have been charged with involvement in that murder and they appear to be tied, at least indirectly, to Mr. Kidan, Mr. Abramoff's business partner.

TG:  So Kidan may be implicated in a murder?

PS:  I don't think anybody has made that statement.  There certainly are questions that have been raised.  We do know that after the sale went through there was very bad blood between Mr. Boulis and Mr. Kidan and Mr. Abramoff.  Shortly thereafter, for reasons we don't understand at this point, Mr. Boulis was gunned down.

TG:  Where does Congressman Bob Ney, Republican of Ohio, fit into this story of the purchase of the Sun Cruise gambling boats?

PS:  Well, he has lots of ties to Mr. Abramoff and Mr. Scanlon. In the Florida situation, Mr. Abramoff was able to use Congressman Bob Ney, an Ohio Republican who is Chairman of the House Administration Committee, to place into the Congressional Record statements praising Mr. Kidan and other statements condemning Mr. Boulis.  It doesn't appear that Mr. Ney had any real information about either of these two men.  And yet he was quite willing to place in the official record of the House of Representatives these statements for Mr. Abramoff.  The question is whether or not he did that in exchange for some gift or gifts Mr. Abramoff provided him. 

TG:  There's a very interesting background which goes beyond Washington politics.  Why don't you give us a kind of sketch of Jack Abramoff?

PS:  Abramoff was born in Atlantic City.  He moves, as a boy, with his parents to Beverly Hills where his father worked for Arnold Palmer, the golfer.  Abramoff becomes very conservative as a young man.  He goes off to Brandeis for college.  He becomes influential within the College Republican operation on the East Coast and eventually becomes chairman in the 1980's of the College Republicans.  He makes these friendships with people like Ralph Reed and Grover Norquist that would pay benefits for decades to come.  He goes from Washington to Hollywood in the mid-1980's where he decides he's going to follow his brother into the movie business.  He makes an apparently very forgettable action movie in the late 1980's called "Red Scorpion," with Dolph Lundgren, the action hero. In 1994 Republicans take control of both houses of Congress for the first time in many, many years.  Abramoff sees a new opportunity to cash in, if you will.  He comes to Washington and he becomes a big-shot lobbyist.  He certainly has the connections all over Washington to get things done for corporate clients.  He becomes best known here early for very aggressive lobbying on behalf of a tiny chain of island in the western Pacific called the Northern Mariannas.  The Northern Mariannas are American territory.  But they are not required to abide by many federal labor laws, including the minimum wage law.  So what emerged in the 1980's were small garment factories.  Migrant workers were brought in from places like the Phillipines and China to make garments at much less than minimum wage, with none of the protections that workers in this country are entitled to, and in conditions which human rights groups describe as "sweatshops."  They were able to make these clothes and label them "Made in the USA."  And this becomes an opportunity for Abramoff to prove himself as a champion of the free market because the garment manufacturers hire him on to defend their interests and to argue that what is happening in the Northern Mariannas is a petrie dish of capitalism, a real opportunity to prove that markets work and that the federal government's taxation policies are unfair.  Over the course of several years, Abramoff flies out to the middle of the Pacific many members of Congress, including Tom DeLay, offers to put them up at luxurious hotels.  The beaches are lovely out there.  It's a very nice part of the world in terms of physical appearance.  They play golf.  They have a great time.  They see these garment factories and come back and defend the practices when they get to Washington.  From there it was, philosophically, not much of a leap for Abramoff to defend the interests of Indian tribes and their sovereignty in running their casinos and their freedom from regulation by the federal government.

TG:  Is there any implication that Abramoff did anything wrong with the Marianna Islands?  Is what he did above-board?

PS:  Well, I think human rights groups would tell you differently, but I don't think that's so much the focus of what the Justice Department has been up to.  Abramoff did bring a lot of members out to the Mariannas to see what was going on, but there is, in fact, in Abramoff's old lobbying firm, documents showing that contacts were made with the House Ethics Committee to make sure that these trips were on the up-and-up.  Much more of the attention of the Justice Department than the criminal investigators is on what Abramoff did on behalf of the Indian tribes.

TG: At the risk of confusing our audience even more -- it's so challenging to cover this story because there are so many different chapters and interconnections between people.  Our goal here in this interview is to try to connect the dots and tell the story...

PS:  I completely agree with you!

TG:  But do you have a lot of trouble telling this story in your newspaper? 

PS:  I do.  You're given 800 words and its hard to get all this in.  I told my colleagues that if we could get Tom Wolfe to decamp from the upper East Side for a couple of weeks and come on down here.... This is sort of a "Bonfire of the Vanities" of Washington!  You know, larger than life characters, lots of money, fancy meals, excess, excess, excess.  It's a story that takes you all around the world with lots of exotic locations.  You finish up in Margaret Thatcher's offices in London.  You wind up in what are known as sweatshop factories on little tiny islands in the Pacific.  It's got lots of color and it has tentacles everywhere and it's very difficult to compress into a daily newspaper story.

TG:  Okay.  You've spelled out for us some of the practices that are being investigated now by various groups surrounding Jack Abramoff the lobbyist and his associate Michael Scanlon.  What do you think are some of the larger implications of these ongoing investigations?

PS:  I think the largest implication is that you could see members of Congress and other federal officials face real problems with the Justice Department -- face criminal charges that they accepted bribes or other illegal gifts from Abramoff and Scanlon.  There is a lot of fear on Capitol Hill as to where the Justice Department is going here and what else Michael Scanlon may know.  And I think there certainly is the understanding that the Justice Department at some point might be willing to reach a deal with Abramoff in exchange for which Abramoff would identify particular public officials who broke the law.

TG:  What is this story telling us about what lobbying is like in the US?

PS:  I think there are people who would argue that this story is proof that things have spun out of control in terms of the influence of lobbyists and their money on the workings of the federal government.  Your listeners may remember the last set of lobbying scandals in Washington --Abscam in the 1980's, Korea-gate in the 1970's -- in which members of Congress accepted gifts and bribes that caused some of them to go to prison.  But if you look at the situation then, the amounts of money we're talking about were chump change compared with what we talking about with Abramoff and company.  In Korea-gate in the 1970's, the lobbyists handed out envelopes filled with cash with 10 - $20,000.  That's nothing compared to the amounts of money we're talking about with Abramoff, who would spend $100K for a single trip of a single Congressman to go golfing in Scotland as apparently happened here once. 

TG:  Is there an obvious line between what was legal and what was illegal in the activities that Abramoff is alleged with having conducted?  I mean like paying for a $100K trip for a congressman.  Is that clearly against the rules?

PS:  Well, like everything else, it gets a little bit murky because what Abramoff would do in some of these cases, it appears at least, is that he would have money sent as donations to a particular charitable group and then that charitable group would sponsor the trip.   Congressmen are allowed to accept trips from legitimate educational and and other sorts of groups. In the case of Congressman Bob Ney, who we were talking about earlier, who is pretty clearly referenced to in the indictment of Michael Scanlon, Abramoff arrange for a trip which Abramoff described as being a $100K trip to Scotland for Congressman Ney and a few others, including Ralph Reed, who we're also talking about.  That was apparently paid for largely by a private charity that Abramoff controlled and to which the major contributors were some of his Indian tribe clients.  So the Indian tribe clients sent money into the Capital Athletic Foundation, which is the charity, and this is the charity which then sponsors a trip for Congressman Ney and others.

TG:  It looks like we're not going to have time to talk about the investigations into Tom DeLay.  I think it's just too complicated to bring in even more investigations into the story!  But how closely linked have Abramoff and Scanlon been to Tom DeLay, and how does the investigations into Scanlon and Abramoff affect the investigations into DeLay, if at all?

PS:  DeLay's under indictment now in Texas on charges of violation of the state election laws.  That's unrelated to what's happening in Washington.  But Scanlon worked for DeLay for a period of a year or two.  The two men were apparently reasonably close.  Abramoff and DeLay were very close.  At one point Tom DeLay publicly described Abramoff as among his closest and dearest friends.  It's pretty clear from the record that Abramoff was the guy who organized a handful of extremely lavish overseas trips for Tom DeLay, trips that have attracted the attention of the Indian Affairs Committee in the Senate and of the Justice Department. 

TG:  What is your approach to covering this story?  On the one hand you're obviously covering all the investigations, the hearings, and so on, but are you also investigating independently, trying to independently get access to documents or kind of go behind the scenes and break new parts of the story yourself?

PS:  Oh, absolutely!  I have trouble sleeping at night with the understanding that on Capitol Hill there are apparently hundreds of thousands of pages of Abramoff's emails documenting all sorts of things that I think we'd like to know about.  And almost every day brings some new revelation about Abramoff and his lobbying.  I think there was a story a couple of weeks ago that we had about how Abramoff had approached a small West African nation, Gabon, and asked for $9M for a lobbying campaign that would focus on getting a meeting for the president of Gabon with President Bush.  We don't know in fact whether that money was ever paid or if there was ever a signed contract, but -- sure enough! -- ten months after Abramoff prepares the paperwork on this, who should appear in the Oval Office but the President of Gabon!  It was a meeting with President Bush.  And I think there's just an awful lot more about Abramoff we don't know.  We may know more soon -- though this investigation seems to be taking its time. 

TG:  Did you break that part of the story about Gabon?

PS:  Yes.  There may be more coming on that front, on what other representation Abramoff had on behalf of small nations abroad.

TG:  What can you tell us about how you break a story like that?

PS:  Well, in that case, it was somebody presented us with these documents out of Abramoff's lobbying operation that showed this pretty brazen effort on Abramoff's part to get a big payday for largely arranging a single meeting at the White House.

TG:  How does the fact that several journalists have been subpoenaed and asked to testify -- and in fact have testified -- for the Special Prosecutor in the investigation into Valerie Wilson?  How has that affected your sources'  willingness to speak with you, and are you concerned that you might be asked to testify in an investigation?

PS:  I'm not -- I don't know if I face, in this case, that possibility.  Actually at the moment, along with my former colleague, Judith Miller, there is an effort by the Justice Department to obtain some of my telephone records involving stories we did after September 11th.  Apart from that, in this case, I don't... you know, I think there is a chilling effect on all of us at the moment.  There's a lot of nervous conversatioon when you talk with folks about the Abramoff investigation or almost anything else going on in Washington these days with worry about what are the implications on the part of the source in talking to a reporter.  You know, I'll go to prison if need be if it's in exchange for valuable information.  But I think the person that might provide that valuable information to me is having second and third and fourth thoughts about presenting it to me.

TG:  Right... There've been a lot of emails that have been used as evidence in this story. Some of them, I have to say, quite colorful and vivid in their language!  Do you have any favorite quotes from the emails that have circulated as part of the story?

PS:  Oh, if you ever had worries about your private email becoming public, Abramoff would have reason to worry even more.  Because Abramoff clearly lived on email.  Every thought he had was expressed in email, and some of those thoughts were pretty colorful, and some of them were pretty ugly.  There have been emails that have come forward in which Abramoff and Scanlon describe their Indian tribe clients as troglodytes and monkeys and all sort of distasteful things.  Just in terms of the brazenness of this operation, there's a lot of locker-room chit-chat.  You know:  "I want to get my mitts on their moulah... I want to fire up the jets, baby.  We're going to  El Paso to milk this deal..."  I think this man put every thought onto a computer screen.  And all of that is now available to investigators at the Justice Department, and a lot of it is available to the investigators in the Senate Indian Affairs Committee who've been looking at Abramoff for a long time.  I think maybe one of the reasons we haven't seen a lot of that email is because it does involve serious allegations of illegal gifts given to public officials.  The Justice Department doesn't want that out because it is now pursuing those public officials.

TG:  Michael Scanlon, whom we talked about earlier, has a reputation as a pretty tough guy.  He sent an email -- this was during the Clinton impeachment, right after Clinton testified to the grand jury about Monica Lewinsky -- and Scanlon objected to "this whole thing about not kicking someone when they're down.  You kick him until he passes out, then hit him over the head with a baseball bat, then roll him up in an old rug, throw him off a cliff, and pound the surf below!!!!!"

PS:  He loved those exclamation points, I promise!

TG:  What was Scanlon's role in the impeachment process?

PS:  He was part of the DeLay war room.  I think for many prominent Democrats a lot of scores are being settled here.  Actually, I think Tom DeLay and Company argue this, that the reason they're being singled out for investigation is because there's some vendetta against them for their actions against Democrats in the past.  But no, these are tough guys.  These guys play for keeps.

TG:  Do you have a sense of how the Republican Party is being affected by the fact that Tom DeLay, the powerful House Majority Leader, is no longer House Majority Leader?  He's bogged down in investigations.  Abramoff and Scanlon who were really major fundraisers for Republicans -- they're being investigated.  How are these investigations, do you think, affecting the larger power base of the Republican Party, or of the Bush administration in particular?

PS:  I don't think we know yet.  And you have to remember that opinion polls showed that the public has held Congress in low esteem for many, many years.  So the fact that there might be bribery and corruption on Capitol Hill -- I don't know if it comes as a great shock!  And I don't know how it would affect the overall election results next year or in three years.  A concern on the part of a lot of Republican strategists is that some of this at some point is going to take... I don't know, the Tom DeLay criminal case in Texas, for example... I don't know if people, the public, can follow that.  It's a convoluted tale of violations of state ethics laws.  But this week we had a plea bargain by a member of Congress, Republican from California, Duke Cunningham, who acknowledged taking $2.4M in bribes, and this included things like a Rolls Royce and antique toilets and a yacht that was apparently called "The Dukester" -- I think some of that is probably memorable detail that voters might remember next year when they cast their ballots.  And I think in the case of Abramoff, the excess is so great and the details are so delicious -- often -- that people might remember it and wonder whether there's a larger problem here.  I think we're going to hear a lot in the future about Abramoff's restaurant in Washington, called "Signatures."  It's one of the most expensive restaurants in town that Abramoff used as a second office and at which he would wine and dine members of Congress every night to an extraordinary degree -- and comp 'em.  He wouldn't charge them.  I think when we find out exactly how much champagne Congressman X drank, and how elaborate were his meals with his wife and children and best friends, I think some of that detail may be pretty memorable to a lot of people.  Then we could see some effect on the larger elections results.

TG:  Where are we now in the investigations into Abramoff and Scanlon?  What's next for both of them?

PS:  Well, Scanlon has agreed to cooperate and to some degree he's been cooperating, apparently, for several months.  I think we're waiting for many shoes to drop.  I don't know if we have any strong sense that there will be an additional indictments soon, but I think we're going to see additional indictments down the road.  Otherwise, the Justice Department wouldn't have sought out a deal with Mr. Scanlon.  Obviously they consider his testimony useful in bringing down others.  I think there's an understanding that some sort of action against Abramoff is simply a matter of time.

Audio available here.

12/1/05: NPR: Paul Pierson and Jacob Hacker interview: "Off Center: The Republican Revolution and the Erosion of American Democracy"

Host/interviewer:  Terry Gross

Political scientists Jacob Hacker and Paul Pierson are the authors of the new book Off Center: The Republican Revolution and the Erosion of American Democracy. In the book, Hacker and Pierson examine the tactics of far-right Republicans -- and how they've changed the system for years to come. They split their subject matter into two topics: "Abandoning the Middle" and "Broken Checks and Balances."

Hacker is an associate professor of political science at Yale University. Pierson is a professor of political science at the University of California at Berkeley.

An excerpt from the book, Off Center, is available at the Fresh Air website.

Discussion relevant to this topic, sometimes including input from the authors, can be found in forums at Talking Points Memo Cafe listed and linked here. 

Terry Gross:  The accepted wisdom in American politics is that the moderate center prevents either party from moving too far to the extremes.  In the new book, Off Center, Jacob Hacker and Paul Pierson write that the Republican Party has managed to defy this accepted wisdom.  They say that the Party has strayed from the moderate middle of public opinion, sided with extremes, and yet faced little public backlash.  After making this case, Off Center analyzes the techniques the Republicans have used to move the political agenda further to the right.  Jacob Jacker is an associate professor of Political Science at Yale and a fellow at the New America Foundation.  He's written for the New Republic, the Nation, the New York Times and the LA Times.  Paul Pierson is a professor of Political Science at the University of California at Berkeley and a former professor of Government at Harvard. You write that the Republicans have defied the normal laws of political gravity.  Which laws do you have in mind?

Jacob Hacker:  Well, there are two laws that we have in mind.  The conventional wisdom is that politicians almost always seek the center.  That's because they need to capture swing voters, the people right in the middle of the electorate, to gain office.  So politicians are expected generally to appeal to the moderate center of public opinion.  The second law that we talk about is that we have a very convoluted political system with lots of checks and balances.  It was designed to make action very difficult.  So if you are trying to change politics and policy, you shouldn't be able to radically change them, at least not without really strong public support for your actions.  But what Republicans have done, essentially, is govern quite far to the right of the center of public opinion and at the same time achieve and pursue many of their most conservative goals.  To us that's very puzzling.  It really is defying what we think of as the normal course of American politics.

TG:  You argue in your books that Republicans have been able to win elections in spite of being further to the right than the majority of Americans in the mainstream... What evidence do you have that the Republican Party is further to the right in its agenda than the majority of Americans or the majority of Republicans who voted for them?

Paul Pierson:  Well, in the book we run through a great deal of evidence that looks at Republican politicians and also the activist members of their party, sometimes referred to as "the base."  Which show that, on a whole set of issues having to do with both the voting behavior of politicians and the positions that are staked out by activists, that they've moved way to the right in the past 20 or 25 years.  The changes are really quite dramatic and can be demonstrated systematically.  So one might think, based in part on what Jacob was just saying about how politicians try to stay close to where the voters are, that that must mean voters have moved well to the right as well.  But in fact, if you look systematically at public polling evidence, and there are political scientists who measure every public opinion poll and look at the same questions that have been asked repeatedly over many many years, there are simply no signs that the opinions of the voters have shifted to the right at all on the major issues.

TG:  One of the questions that you pose in the book is,  if the Republican Party is further to the right than mainstream American , then how have they managed to win elections.  What answers do you give to that?

JH:  I think you really have to focus on both sides of the story, in terms of elections.  One side is the electoral battlefield, or the geographic map.  And as we point out in the book, Republicans just have a big edge on the electoral battlefield, right out of the starting block.  For example, in the Senate, over the last three Senate elections, Democrats have actually picked up 2.5M more votes in the last three elections in total than Republicans.  But right now, they're holding 44 seats in the Senate to Republicans'  55.  So there's a really dramatic bias on the Senate side in favor of generally Republican-leaning smaller states. On the House side, we've heard a lot about redistricting and gerrymandering, and that's certainly part of the story.  In fact, in the most recent election of 2004, Bush won about 52% of the vote.  He won in about 59% of Congressional districts.  So that suggests Republicans do have an edge there.  But I think it's also important to note, on the House side, that money is important.  And the Republicans have just a huge edge in terms of both the amount of money they have and their ability to distribute it to Republican incumbents.  So the electoral battlefield is really important.  It's very tilted in favor of Republicans.  The other thing we talk about in the book is that not only is the battlefield tilted but Republicans have gotten very good at figuring out how to fight the battle on the terms that are most beneficial to them.  That is, they use their very strong control of government and the political agenda to shift the terrain of conflict onto those issues which most help them, such as national security issues and the war on terrorism.  You might say, Well, that's just part of politics.  But as we point out in the book, the Republicans are just much more coordinated than previous parties have been.  They've used government to essentially shut out the opposition party from any meaningful participation in public debate.  So until recently, the game of politics was really like what the journalist, Ron Brown, described as a game of baseball in which only one team was at bat. 

TG:  Another point you make about elections is that in districts or in states where the Republican is pretty much a shoo-in to win, that the primaries become more important.  In what sense do the primaries become more important in the situation and how do you think the Republicans have taken advantage of that?

PP:  This is a crucial change in American politics.  So many politicians are sitting in safe seats.  There is less turnover in the House these days among sitting members than there was in the Soviet Politburo in the old days of the Soviet Union.  97 to 98% of incumbents are typically reelected.  So if you're sitting in a safe seat like that, which most sitting politicans are, and your worried about keeping your job, the only place you're likely to face a threat is in the primaries where you could potentially be unseated by some kind of challenger.  Of course, primary electorates are very small -- most people don't vote in primaries -- and they're limited to the most energized, most enthusiastic members of the political party that the sitting incumbent is part of.  That means that those most intense elements of the base, which tend also to be the most politically extreme, really become important gatekeepers for politicians who are trying to develop their careers and stay in power.  That's one of the reasons -- we don't think it's the only reason -- but it's a very important reason why the Republican Party has moved so far to the right.  It's partly that they have just move that way ideologically, but it's also that they do face the incentive of really wanting to appeal to their base so they don't have to worry about being challenged in the primaries.

TG: Are there ways that you think Republicans are trying to control primaries in a way that are different from the way Democrats are?

JH:  Well, I think that both side of the political spectrum, both Democrats and Republicans, have witnessed the same trends towards increasing numbers of safe seats. But in the Republican Party this transformation has resulted in a much greater pull towards the extremes.  One piece of evidence for this is a University of Texas political science look at the changes in the Republican and Democratic parties that have caused partisan polarization.  They looked at every race over the past 20 years or so.  One of the striking things was that when Republicans were replaced by other Republicans -- that is, a Republican incumbent left office and another Republican replaced him, that Republican was always much more conservative than the one before him.  The same wasn't true on the Democratic side of the aisle.  That is, when Democrats replaced other Democrats, there was not a big shift of the left.  So this is something... a much stronger pull to the extremes on the Republican side that's caused by primaries.  In the book we talk about one possible cause of this.  Which is that Republican activists are much more cohesive and conservative than Democratic activists are cohesive and liberal.  For example, Republican activists have moved dramatically to the right over the last thirty years according to the well-respected opinion survey, the National Election Studies.  They've moved so far to the right, in fact, that they are farther away from independent voters than they were in the mi-1960's when Barry Goldwater was nominated as the Republican standard bearer.  And another thing we know about Republicans is that they are very well organized at the grass roots level.  They're organized through churches and through local organizations and school boards.  That kind of organization translates into getting out very intense, motivated, ideological voters in primaries.

TG:  So one of your points about Republican primaries now is that you think Republicans who are further to the right in primary are in a safe seat, a seat that's likely to go Republican.  That the candidate that's further to the right is likely to get the backing of the Party and the money from the Party and money from certain powerful rightwing groups.

PP:  The groups become a key gatekeeper for people who want to be successful in the Party.  We can see that in the conservatism that's evident among members of the House and Senate on the Republican side.  And especially among their leaders who are also tightly connected to these key groups in the base.  But of course the other crucial part of this story here is that politicians wouldn't be able to move so far to the right if they didn't feel like they were going to have some protection around election time.  And some of that of course has to do with the geographical electoral advantages and the financial advantages we talked about before.  But it also has to do with very sophisticated techniques they've developed to allow politicians to appear more moderate to a mainstream general election audience than in fact those politicians actually are with respect to the policies they're carrying out.

TG:  Give us an example of what you mean.

PP:  Well, we can see good examples in the news today where there are these big fights going on about the budget.  Right now Congress is starting to pass a budget and there's a lot of discussion about how Republicans are actually less unified and there's more opposition than there has been in the recent past.  But a lot of that opposition is really theatrical, rather than substantive.  There are efforts being made to allow moderate, potentially vulnerable, Republicans who are facing reelection next year to -- as the lingo sometimes goes -- create a little daylight beween them and the Republican leadership.  So they'll cast a vote in opposition to the leadership, but only in circumstances where it's going to make a very marginal change in the political agenda or where they know they're going to wind up being on the losing side.  Or where they know that any kind of changes that are introduced at one stage in the legislative process can be taken out at a later stage of the legislative process.  We talk at length in the book about the various ways in which moderation can be created, or at least an appearance of moderation can be created, without jeopardizing a more radical agenda that the GOP continues to pursue.

TG:  So you're basically saying that some people who consider themselves Republican moderates and vote with the Democrat and against the Republican agenda are basically given permission to do so when Republicans know that the bill is going to pass anyway.

JH:  This certainly happens.  We have lots of evidence that this has happened on high-profile legislative drives in the House.  And it helps account for the fact that we've had so many bills pass with just one or two extra votes.  What happens is that the Republican leadership counts up the votes, figures that it has a few to spare, and then carefully doles them out to Republican moderates so that they can declare their "independence" from the Party to their constitutuents.  So the point is that the Democrats have found it very difficult to get moderates to come on board when it really matters, when it's going to mean a key defeat for the Republicans.  We've seen that again and again.  Perhaps the most revealing statistic on this isn't what's happened in Congress but the fact that George W. Bush has yet to veto a single bill since he's been in office.  You have to go back to our 6th president, John Quincy Adams, to find somewho who has a record of lasting an entire presidential term without vetoing a bill.

TG:  I'm not sure whether you're challenging the sincerity of certain Republican moderates, or whether you're saying that certain Republican moderates can't afford to vote against party initiatives because they will lose their seat.  And so they're too intimidated to vote their conscience and therefore will only vote their conscience when given the green light by their own party.

PP:  Well, I think it's hard to get into the heads of individual politicians, and you would probably find that for different politicians there are different stories that would come closest to the truth.  I think there are elements of both these things going on.  In some cases you have politicians acting this way out of fear. They go along with the leadership because they're afraid of what the consequences will be.   You know once consequence, as you said, Terry, could be a primary challenge, but another consequence could be losing access to those who, in a much more centralized Congressional apparatus, are the ones who are doling out benefits to various members. So there are a lot of potential costs to crossing the leadership in a meaningful way.  But we do think that some of this stuff is so clearly staged, when you look at it closely...

TG:  Give me an example of something that you thought was staged.

PP:  Well, a dramatic example would be the struggles in the Senate back in 2003 over major tax cuts that were being proposed.  One of the signature items on the Republican agenda has been very, very substantial tax cuts.  As we document in the book, these tax cuts would not have been easy to pass if there hadn't been substantial efforts to suggest that they were going to be much more evenly distributed and much less expensive than of course turned out to be the case.  In 2001, there was a surplus in the budget, so it was relatively easy to convince people that the tax cuts were a reasonable idea.  But by 2003, you had the beginnings of the run-up to the war, and you also had large budget deficits.  So there was a lot of concern about the scale of the tax cuts.  And several ostensible moderates in the Senate announced very publicly that they would not vote for the tax cuts that the Bush administration was proposing unless they were reduced dramatically in size.  Originally the Bush administration was asking for about $600B in tax cuts over ten years, and they said they wouldn't vote for more than $350B.  So the Republican leadership in Congress dealt with this problem not by actually reducing the scale of the tax cuts but essentially by using budgetary tricks of phasing in the tax cuts gradually and announcing that they would miraculously sunset ten years later on.  And by doing that they were able to introduce a new budget bill which, if it stays in effect, would cost a trillion dollars over 10 years.  Having made their public statement about how they were going to stand up and not accept a budget-busting $600B bill, the Senate moderates then signed onto a bill which, if it stays in effect, would cost a trillion dollars.

TG:  How do you think the Republican approach to what you describe as controlling the vote of Republican moderates compares to how Democrats try to control the votes so they have a chance of winning on certain bills -- or defeating bills?

PP:  Well, there's no question but that Democrats used some of these techniques when they were in the majority.  I was in a conversation with Norm Ornstein who's at the conservative American Enterprise Institute and who's been a long-time observer of Congress, very well respected observer of Congress, who made this point the other day.  That of course these things are not a Republican invention.  But, as he put it, they've ratcheted things up to an entirely different level.  If you look again at facts, at scores for how much unity a party maintains, and again this very striking point that Jacob mentioned, that after now five years in office, Bush has yet to veto a single bill.  Which is a sharp contrast with previous presidents who, by this point in office, would usually have vetoed a couple of dozen bills!  That's a very strong example of how Republicans have really maintained a united front in a way that's without precedent in American politics.

TG:  Do you think the Republican leadership has innovated new techniques for controlling the political agenda?

PP:  We do.  Then, again, a lot of these things are not unprecedented.  In a lot of cases, what you're talking about is refinements.  And also -- I think this is an important part of the puzzle too -- the fact is simply that their goals are more extreme.  I think they're further from the center than has been true for previous leaderships.  So there are refinements.  But there are some things that are quite new.  One, in addition to some of the things Jacob was talking about, is the way that the laws themselves are designed so that they appear more moderate than they are.  Maybe the most important but also revealing example is the 2001 tax-cut legislation which was designed in ways, as I said earlier, to look both less expensive than it was and made to look like it was distributed in ways that would be more acceptable to average voters.  One aspect of that design, I think, is particularly revealing, which is that people on average incomes -- what they got from the 2001 tax cut they got right away in a way that was made very visible for them.  People received a check with a nice little letter from Congress and the White House within a matter of weeks after the bill was passed in 2001.  The very substantial benefits for the most affluent Americans were phased in much more gradually so that they would receive less attention.  And there was a striking example -- again, it's unfolding right now though without receiving any press attention at all.  Beginning in January 2006, there's going to be a new round of cuts, passed in 2001, that are just going into effect in January 2006.  97% of the benefits from these tax cuts will go to people making over $200,000 a year.  So that's an example of legislative design where the bill is very carefully structured in a way in which its more moderate or appealing elements for the average voters are presented right up front.  It's less appealing elements are hidden.

TG:  Another thing that you cite in terms of how you think the Republicans have managed to keep tight control over the political agenda is about changes in the way conference committees operate.  What do you have to say about that?

PP:  Conference committees are where the House and Senate have to come together to work out their differences if they've passed slightly different versions of legislation and then come back with a bill that can be agreed on by both the House and the Senate.  Traditionally this used to be an area where, essentially, you were doing just that -- working out differences between the two versions.  What Republicans have done is to use conference committees as a whole new tightly controlled environment in which they can rewrite legislation to pursue even more extreme goals.  So it is now typical in these conference commitees for the leadership essentially to pick who is going to participate and to hold their meetings in private without any participation from Democrats, except occasionally one of these Democrats Jacob was mentioning who lives in a state Bush carried and who has agreed to negotiate on their terms.  All other Democrats are excluded from these negotiations.  The bills are then rewritten in ways which are typically much more conservative in many cases than the bills that came out of at least one of the two chambers.  And often they include significant elements that were not part of the original legislation -- or at least not in anything like the form that they turn up out of the conference committee.  These bills are then brought back to the floors of the House and Senate where they cannot be amended.  They're simply presented for an up-or-down vote.  And that's a really powerful form of agenda control.  Because in many cases you'll get a bill that has a popular label on it -- like "tax cut" or "bill for a prescription drug benefit" -- that politicians are very reluctant to vote against even if they know that the details of the legislation have been rewritten in ways that are quite objectionable.

TG:  Would you give us an example of a bill that was rewritten in conference committee in the way that you've just described?

PP:  Well, the classic example, I think, is the prescription drug bill, which started out in some ways as a kind of old-Americain-politics-style agreement where you had a pretty conservative bill that came out of the House, and then a more moderate bill that came out of the Senate -- where you needed significant Democratic support in order to get it through without a filibuster.  Ted Kennedy played a very prominent role in helping to fashion a compromise that wasn't anything like ideal, from his perspective, but he thought acceptable.  A compromise bill that came out of the Senate.  The bill then went into conference.  Democrats, except, again, for the most conservative Democrats, were completely excluded from the conference.  No House Democrats were allowed to participate in the conference meetings.  And the bill was rewritten and pushed, in a number of important dimensions, way to the right  And then when it came back to a vote -- and again when it comes up for a vote, you're not allowed to make any amendments -- Kennedy was livid and said, This is not at all what we agreed to before.  But a lot of Senators who were put in a position where they were going to have to vote "no" on a prescription drug bill, they don't want to do that.  They didn't want to be seen as casting a vote in that way.  So this bill ends up passing even though it's radically different from the bill that originally passed the Senate.

[break]

TG:  You write about the architects of what you call "the new power structure" of the Republican Party.  You say "these are the people who sit at the intersection of money, mobilization, and authority."  Examples you give of people in this position are Karl Rove, Tom DeLay, Grover Norquist... I mean, doesn't it go without saying that people that people who have political power sit "at the intersection of money, mobilization, and authority."  Is there any difference here?

JH:  Yes, I think there is.  There are two things that have really changed, and we call these people -- DeLay, Rove, Norquist and others who are this crucial juncture -- we call them power brokers.  And what's changed is that the old power brokers were, in many ways, fairly pragmatic deal makers.  These new power brokers, as we call them in the book, are very ideological.  One thing that connects all three of the people we've just mentioned is that they are very hard-core conservatives with the possible exception of Rove who's a bit more pragmatic but who nonetheless has made his name by getting President Bush to appeal to his conservative base. The second difference -- and I think this is the more important difference in many ways -- is that these power brokers are working with a much stronger set of resources.  They're at the intersection and brokering in a much more powerful way than political of a similar sort were in the past.  They have huge amounts of resources at their disposal and they're able to link together those resources through interest groups and through high-profile donors up to politicians in a way they really control -- they're really the gatekeepers -- to entry into the halls of influence.  We really haven't seen that to the same extent, at least not in the recent past.  Each of these people, like Norquist and Rove, really gets to decide who gets access to whom.  And there's a really revealing story that actually, when people wanted to meet with the leadership and with the President, the would talk with Grover Norquist, who's head of Americans for Tax Reform, who has no formal authority in the matter.  Norquist would then talk with Rove.  And the two of them would decide who got access to the inner sanctums of power.  We see that all of the people who are in these positions -- their staff members -- have all worked for each other at various points in time.  So this is a real social structure here that goes beyond the formal authority that these power brokers have.  That represents a really dramatic shift in the structure of power since the 1960's and 70's.

TG:  When talking about the people you describe as power brokers, people you just mentioned -- Tom DeLay, Karl Rove, Grover Norquist -- the question comes up, What tense should we speak of them in as power brokers?  Tom DeLay has been indicted; he's no longer majority leader.  Karl Rove -- it appears that he's being investigated by the Special Prosecutor.  Grover Norquist is implicated in the corrupt lobbying of Jack Abramoff.  So do you think -- the people you describe as power brokers -- are losing or have lost their power?  And if so, how do you think the Republican Party may be on the verge of changing?

JH:  Well, there's no question that the Republicans are facing the biggest challenge to their majority status that they've faced since they originally took control of Congress in 1994.  The scandals -- and, as you point out, there are multiple scandals and a new one is breaking almost every day! or an old one is extending into new circles! -- the scandals are a quite important part of that challenge that they're facing.  The question, though, really is:  in the end, how much difference is it going to make?  And the core of our view would be that there is a system that connects these people.  Grover Norquist said in an interview recently, If I were to be run over by a bus, there would be somebody else who could take my place and if Karl Rove were run over by a bus, there would be somebody to take his place.  Over the last ten years or so, you've seen powerful figures in the Republican leadership take a fall before, for one reason or another.  It's easy for us at a particular moment to think of a particular individual like Tom DeLay or Karl Rove as being indispensible, but back in the mid-'90's Newt Gingrich was seen as indispensible.  Who remembers Newt Gingrich these days as the person who started it all.  But when he fell as Speaker, it had no particularly noticeable or enduring affect on the Republican coalition.  Trent Lott fell as the result of a scandal the same way.  And so our view would be that it's the system these folks are a part of that's the central part of the story.  It's a mistake to focus too much on the individuals.

TG:  As the House Majority Leader, Tom DeLay was credited with figuring out many ways of arm-twisting, for keeping people in line.  Is it fair to say that's one of the things that made him so strong?  What did he innovate in terms of arm-twisting?

JH:  Well, I think one thing that really should be recognized is that the leadership only twists arms when it has to. What it hopes to do is make sure that most of its members are on board most of the time.  So one thing that's not much recognized about DeLay is that he was actually very good at looking out for Republican members if they were willing to stick with the party line.  That's a big shift in Congress.  It used to be that the Congressional commitees really were the center of power, and that the majority party was sort of a scheduler of the Congressional agenda and did a few other things.  But most of the power to make policy, to decide what issues got considered, lay with the Congressional committees that had exclusive jurisdiction over certain areas.   What Newt Gingrich did and Tom DeLay continued was basically a complete and total subordination of the Congressional committees and their leaders to the Republican Party leadership in the House.  And as a result, Congressional committee chairs have to be auditioned to become head of their committees.  One of the key things that they have to show is that they can raise a lot of money for the Republican Party.  Really what DeLay has done has turned around Congress so that he has both the carrots and the sticks. He hopes to be able to use the carrots -- the money he's been able to raise, the fact that he can pursue redistricting initiatives in Texas that'll mean more Republicans will be in Congress for the next elections.  So he hopes to use just the carrots.  But, if he has to, he will use the sticks.  DeLay has been very tough.  He has used sticks.  We tell the story of Marge Roukema, a moderate Republican from New Jersey, who was essentially shut out of a committee chair that she was seeking during her entire 20-year Congressional career.  DeLay had apparently funded, indirectly, her primary opponent and made clear to her that she would never really have any effective power in the House.  When she'd come into Congress, almost 20 years ago, she had said -- and really, it's quite poignant to think about today -- that this had been the greatest dream of her life and that the one thing she'd wanted to do was to move up in the hierarchy of Congress and become a committee chair.  But she left Congress 20 years later not having achieved that goal and basically having been told by Tom DeLay that if she wasn't going to be a team player, she wasn't going to be part of the institution she loved.

TG:  Do you think the Republican leadership has done anything that's illegal or unconstitutional in the way they've tried to control the agenda, or do think they've made very strong, creative, powerful use of the rules?

PP:  Well, we certainly don't have any special insight as to whether laws have been broken.  There are people investigating that right now. But we do think that the more profound thing and the more central thing that has happened is that they have, by creating this new level of unity and coordination, they have changed the character of the system in ways that have really undercut our traditional sense of checks and balances, or cross-cutting pressures that enforced diversity and moderation in the kinds of view that have been expressed in Washington.  Whether or not laws were broken, that change in the system needs to be understood and people need to think about how to respond to it.  Our deepest concern in writing the book was the sense that accountability and responsiveness to the concerns of ordinary Americans has really been undermined in the last 15 years. 

11/30/05: NPR-Talk of the Nation: New Roberts Supreme Court arguments on parental notification with excerpts based on audio clips from the Court proceedings

Host: Neil Conan
Guests:

David Savage, Supreme Court reporter for the Los Angeles Times; author, Turning Right: The Making of the Rehnquist Supreme Court
Kelly Ayotte, attorney General of New Hampshire
Louise Melling, director of the ACLU Reproductive Freedom Project; lawyer representing Planned Parenthood of Northern New England

Neil Conan:  The Supreme Court heard its first abortion case in five years.  Big news by itself, even more so with new Chief Justice John Robert presiding.  The case involves a so-called "parental notification law."  Like most states, New Hampshire [NH] requires doctors to notify at least one of the parents before performing an abortion on girls younger than 18.  Like most states, NH provides an exception in the case of a life-threatening emergency.  But NH is one of the few states whose law does not provide exceptions in less dire circumstances, as when the health of the mother might be threatened.  Supporters of the law argue that the health exemption is a giant loophole that could undermine parents' right to be in charge of the medical treatment of their children.  Opponents say it is not always possible to locate parents in time to deal with some medical emergencies.  In the broader sense, this is to some degree a proxy fight over the larger issue of abortion and the law.  There is another issue in today's case as well, as in many other abortion cases.  Lower courts have barred enforcement of NH's law before it took effect.  Is it constitutional for the courts to act before anyone is actually affected?  Later this hour, we'll hear directly from both sides... We're going to hear excerpts from today's Supreme Court hearing as well.  This is just the third time that the Court has provided same day access to audio tape of the proceedings.  The first was Bush v. Gore in 2000l; the second was a 2003 affirmative action case involving the University of Michigan.  Joining us is David Savage. 

Neil Conan:  Before we get to the specifics of this case, I guess I have to ask you:  this is the first big case with Judge Roberts presiding as Chief Justice of the US.  How was it different from Justice Rehnquist?  Was he reticent?  Did he fit right in as Chief Justice?

David Savage:  He certainly fit right in.  He's not a shy guy and he sort of knows what he thinks and he took charge of part of this argument.  I thought, going into this argument, that this would be one of these classic 4/4 splits with Justice O'Connor being the deciding vote.  But halfway through the argument, Roberts suggested a way to resolve this case on narrow grounds that would solve the problem at issue and was something both sides could agree to.  Here's what happened.  New Hampshire passed this law... and there was no exception in the law for health emergencies.  The ACLU and some doctors said, Wait a minute!  What about a situation where we have a young girl who has a medical emergency.  Maybe she's not dying but she's bleeding or something like that and the doctor needs to perform an immediate abortion.  He shouldn't have to go to a courthouse and get some sort of order from a judge.  On that basis, the lower court struck down the law and said the whole law is unconstitutional.  Roberts said, Why not a "pre-enforcement injunction"?  Why not the doctors go to court and get an order that says, This law does not apply in cases of medical emergencies.  He proposed that to the lawyers on both sides, and basically by the end of the argument all the justices including Ruth Ginsburg said, Well, what's wrong with that? Doesn't that basically solve the problem?  So I think Roberts didn't come up with this on his own -- it was in some of the briefs -- but he raised this with both sides and said, There's a simple, direct way to solve this case, sort of a compromise solution.  That is, the law can go into effect for most young girls because they don't have medical emergencies, but for doctors who do face medical emergencies, they can act quickly.  And so I have a feeling the Court's going to write some decision that it looks like most of them could agree with.

NC:  Unusual to find consensus on on a lot of issues, and certainly on any issue involving abortion.

DS:  Yes, that's sort of the last thing you expect to happen is an abortion case where they generally agree.  They're very closely split on this, they've been around this issue before, they're sort of dug in.  Everybody knows their views. Some of them think, like Justice Scalia, that Roe should be overturned.  Some of them are strong supporters.  So you always expect these to be real fight.  But this didn't have that sound to it.

NC:  Let me just clarify that for a moment.  This would be a general provision.  In other words, they wouldn't have to act on each individual case to go find a judge.  This would be a general provision that the courts would enforce there in NH and the effect would be to make NH's law very much like the law in most of the other states.

DS:  Yes, that's right.  It would be sort of an injunction that would apply to all future cases, and it would sort of cure the problem that this law had.  The Bush administration argued, and I think Roberts seemed to agree, the right solution is not to strike down the law for a thousand young girls who need abortions because one or two of them are going to face a medical emergency.  Why not have a court order that makes an exception for just that situation?

NC:  The arguments around this case -- as you say, they might have been resolved by this neat solution proposed by Chief Justice Roberts -- but this seemed to be a classic case of people arguing almost a proxy fight over abortion, an attempt portrayed by opponents of this law that they're basically trying to eat away -- make it more and more difficult by incremental bites to make it more and more difficult for women to get abortions.

DS:  Yes, and that's sort of the background of this case.  And the abortion rights opponents are justified in thinking that. After all, the Bush administration and some members of the Court think Roe v. Wade was wrongly decided and should be overturned.  The Bush administration is supporting more regulation of abortion.  So it's understandable for the abortion rights advocates to say, Let's watch what's going on here, this could be the beginning of unravelling Roe v. Wade, the beginning of overturning it entirely, or the beginning of allowing major restrictions.  But it was not evident in this argument.

NC:  And on the other side, that this is a law about parental rights.  Clearly parents -- you continue to hear the argument -- most schools require parental notification to give the kid an aspirin!

DS:  Yes, that's right.  There's also the sort of democratic argument that's made. If a state legislature passes a law like this, and it has strong support in the state legislature, and the Supreme Court has basically said this principle is constitutional, why strike down the entire law and say, You can't enforce this law at all, just because of the occasional very real problem that is the medical emergency.

NC:  Well, to get to the heart of the NH Attorney General's argument, Justice Stephen Breyer put forth a hypothetical scenario.  In this audio clip from today's arguments you'll hear the voices of Justice Breyer, Attorney General Kelly Ayotte of NH, and Justice Sandra Day O'Connor:

Justice Breyer:  Let's imagine a real circumstance.  A 15-year-old walks in at 2 in the morning on Saturday to the emergency room, and the doctor looks at her.  She's pregnant, she has this very high blood pressure or whatever, and the doctor thinks to himself, Well, immediate abortion.  No questions.  Immediately deliver the child.  If I don't, I don't think she's going to die but she'll never have children. And he's thinking that.  What's supposed to happen?  He calls up [] or [] and there's no answer.  It's 2 in the morning, and there's one of those things saying "leave a message."  Okay?  Shall I call your parents?  No. They don't know I'm pregnant.  Now, what's supposed to happen?

Kelly Ayotte:   Justice Breyer.  The physician in those instances could perform the immediate abortion

JB:  Doesn't say that in the statute.  It suggests the contrary.  So what is the particular provision of NH law that tells that?  I mean, the doctor -- all these things are questions of probability -- and he doesn't want to risk being prosecuted and he doesn't want to risk losing his license.  And so what particular provision -- he happens to have his lawyer with him! [laughter]  What does the lawyer say? What's the provision?  There's no health exemption in this statute.

KA:  Your Honor, his lawyer would advise him in those circumstances that the competing harms defense would protect his actions because he needs to act urgently...

Justice O'Connor:  ... Would it protect him from a civil damages action?  as well as prosecution?

KA:  ...Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability.  I would also say that the lawyer would also advise him if given the opportunity the Attorney General is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance...

JB:  How do we know?  I mean what you're saying is fine.  But how do we know that that's actually the law.  There are a lot of people who absolutely and in very good faith would say that it isn't competing harm.  They would say that the competing right to life of the fetus is more important than the possibiity of the mother having children in the future herself.  See, there are people of good faith on both sides of this argument.  And so how do we know that the NH statute is going to do -- not the statute that your competing harms defense is going to do for this particular woman what a health exception would do?

KA:  Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it as opposed to the harm that the act is trying to get at, which is notification of parents.  It's not whether or not the minor can have an abortion.  The minor can always go ahead and have an abortion under these circumstances, so people aren't weighing the right of the fetus in this instance to the right of the mother's health.  So the weighing is quite easy.

NC: ... It sounded like she [Ayotte] was having some difficulty with some of the questions.

DS:  She was. [Break, summary.]

NC:  Let's take a call.  Jim is on the line with us from New Haven, CT.

Jim:  I was very interested to listen to the commentary.  It sounded to me as though you were saying this case, which is supposed to be giving us an idea of how Chief Justice Roberts will be ruling in the future, is indicating that he is very much in favor of justice legislating from the bench.  It sounds as if he's very interested in allowing the NH law to stand with modifications as supplied by the Supreme Court. 

NC:  David Savage, is that a fair assessment?

DS:  It's a fair criticism.  Because that is what Chief Justice Roberts and some of the justices are proposing -- that judges could carve out an exception to this law.  And the ACLU attorney basically said, this is the legislature's job.  But I think the justices of the Supreme Court are going to do it themselves and it is subject to the criticism that they're legislating from the bench.

Jim:  Which is presumably precisely what he is supposed to be against!  He and Scalia and the other appointees of that persuasion!

DS:  Well, let me put in a good word for his side.  I suppose the argument would be, they're sort of saving the law.  By cutting out this minor exception, in a big picture, they're sort of saving the law and allowing it to go into effect by carving out this one exception.  So they could argue they're actually saving most of what the legislature did rather than having it be struck down entirely.

NC:  And let's talk quickly with Lisa.  Lisa is calling us from Rapid City, SD. 

Lisa:  Hi.  This is a very interest argument for me.  I'm a parent and a woman obviously and I'm involved with this issue.  I'm very much about the right to privacy and I'm pro-choice, and yet it's a complicated issue.  I kind of resent the fact that these national pundits are saying, You can't miss the small details, you have to be either 100% for it or against it.  I think it's a very complicated issue.  As a parent, I don't believe that a minor has a right to privacy.  I think that's part of my job as a parent -- to be involved in and especially those life-altering decisions.  So that's really my point.  I feel like we're being pressured as citizen and voter to either be pro-choice or anti-abortion/pro-life. As though we can't debate these smaller issues or they feel it will chip away at our position.  That's something I have a problem with.

NC:  David, I don't think Lisa is alone. 

DS:  No.  There are many people with... I think if you look closely at the polls, people have very complicated opinions on abortion.  And I've seen in some the recent Gallup Polls, if you ask how many people say abortion should be legal in all circumstances or illegal in all circumstances, both of them are fairly small minorities -- it's like 21 and 22%.  The majority of the people have something that's closer to an in-between position.  They think abortion should be generally legal but not in all circumstances.  Some sort of middle position.  It's a very hard issue, I think, for everyone. 

NC:  Joining us now is Kelly Ayotte, Attorney General of NH.  She presented oral arguments before the Supreme Court earlier today.  In fact, we heard some excerpts earlier.  She joins by phone from here in Washington, DC.  ...Obviously this law was earlier rejected by lower federal courts.  Why did you decide to press on with the case? 

Kelly Ayotte:  I decided to file a petition with the Supreme Court first of all because this was a facial challenge to our statute.  So the entire statute was struck down based on one potential application which they raised which could be problematic.  And we thought that as a matter of a way of looking at the case that that wasn't really proper in the first instance.  So that was one issue that we appealed.  And then we also felt that NH law could be applied to protect for that one potential rare situation that could arise.  We wanted the Court to consider that as well. 

NC:  Let me ask you about some of the talk in the case.  We were talking with David Savage of the LA Times earlier about the proposal put forward by Chief Justice Roberts today of basically making a broad case the exception in courts in NH.  Is that something you find acceptable?

KA:  Well, actually, one of the things that we proposed in the case which we think is quite acceptable is this:  We feel that they didn't meet their standard of review to strike our entire law down.  They should have been relegated to bringing a pre-enforcement as-applied challenge which would have been focused on the real issue of does it work in an emergency situation.  And if a court found that it didn't work in that situation, then the court would do what it does when any plaintiff comes to court and says, Hey, this law doesn't work for me!  And issue an order saying, Okay, state, you can't enforce it in that one context.  I wanted to clarify: that's not rewriting a law, that's what courts do every day.  And that's what courts did -- for example the Supreme Court in a case called Tennessee v. Garner -- considered a statute in which the state could use any kind of force to effectuate a fleeing felon in an arrest.  Well the Supreme Court, what they did was, they said No, you can't apply your statute if it's an unarmed, non-dangerous person.  That wasn't rewriting the law.  That was just saying, You can't enforce it in this context.  That's what we've asked for here.

NC:  This judical by-pass?

KA:  With respect to the judicial by-pass?  It's been our position with respect to the judicial by-pass, we haven't ever had the chance to have NH put the by-pass in place.  We think it will work in an emergency situation.  But if for some reason it doesn't, we also argued that another provision of NH law will protect the physician.

NC:  One of the legal implications of this case today was rather technical.  Because the law hasn't actually gone into effect, the Supreme Court doesn't actually have a specific plaintiff.  You'll hear some of the nuances.  We're going to hear a clip of this exchange with Chief Justice John Roberts and Jennifer Dalven of the ACLU Reproductive Freedom Project.  You'll also hear the voice of Sandra Day O'Connor:

Chief Justice John Roberts:  So if your objection goes to the adequacy of the by-pass procedure, what is wrong with a pre-enforcement challenge by physicians, presumably with standing, challenging the by-pass procedure?  Why shouldn't you be able to challenge the act as a whole if your objection is so narrowly focused?

Jennifer Dalven:  Two points, Chief Justice Roberts.  First is that our objection isn't to the by-pass process.  We believe that there would be, regardless of how good the procedures the NH Supreme Court set up, there would still be inherent delay from the time the doctor diagnoses the patient and the time they get to court and get the order.  So it's not a problem of the judicial by-pass. 

JR:  But it's a problem that arises only in emergency situations.  So bring a pre-enforcement challenge concerning compliance with the act in emergency situations.  Why does that even implicate the vast majority of the cases that don't create emergency situations?

JD:  As Justice Ginsburg pointed out, we believe that is this case.  There is nothing different between this case....

JR:  This case doesn't involve an emergency situation.  This is a facial challenge.  There's no case at issue at all. 

JD:  Your honor, the state conceded a pre-enforcement challenge brought by a doctor before any particular patient was at risk would be proper.

Justice O'Connor:  What resulted here?  It was the invalidation of the entire statute and all of its applications? Is that how it now stands?

JD:  That, I believe, is how...

JO'C:  Okay.  So the question you're being asked is how can that be narrowed in some fashion to focus on the problem?  The statute may well have a majority of valid applications.  So how can we narrow the application?  And what of our doctrines allow the narrower application? So you need to focus on that.  Obviously it's a matter of concern.

JD:  Sure.  I think this court in Casey addressed that consideration.  And Casey was essentially this case, a pre-enforcement challenge brought to the adequacy of the medical emergency exception.  This court held that if the law prohibited any immediate abortion for some of the very same conditions we outline here, it would have been unconstitutional.

JR:  Because the Court explained that the inadequacies that identified were present in a large fraction of cases.  We don't know if that's true here.

NC:  Again, a colloquy before the Supreme Court...  Kelly Ayotte, getting back to this facial challenge aspect, explain what this is and how it applies here.

KA:  Sure.  A facial challenge is a challenge brought before an act ever goes into effect.  The remedy that the plaintiffs asked for in a facial challenge is, render the statute void.  Don't let it apply to one person.  And because that's such an extraordinarily broad remedy, the courts normally apply a much more stringent standard in reviewing that type of challenge. So in this context, even in the Casey decision that you heard Attorney Dalven reference, the court applied a standard to the spousal notification provision that would have required someone to demonstrate an obstacle in a large fraction of cases.  Here, there wasn't even a demonstration that the potential issues that can arise in an emergency setting posed a substantial obstacle in a large fraction of cases.  So we're talking about a case on a facial challenge that, from our position, didn't meet the burden of proof it needed to meet to render our entire statute void. 

NC:  David Savage of the LA Times, this aspect of the case again is rather technical sounding but has important implications for other kinds of abortion cases, including perhaps the upcoming case involving the procedure opponents call "partial birth abortion."

DS:  Yes, I think it's going to be hard to figure out how this case it going to play on that one.  But certainly the health issue is the center of the dispute over partial birth abortion.  That is, is it necessary for the health of some women for doctors to be able to do this procedure.  I do think there's a very good argument against the facial challenges.  Kelly Ayotte made it and the Bush administration made it.  That is, there's something that goes too far about striking a law down entirely that could be constitutional in 99 out of 100 cases.  I think the Court is going to find a way to deal with this more narrowly in this case.

NC:  If they do that, Kelly Ayotte -- well, obviously you have to accept it from the Supreme Court! -- is this something that you would agree with?

KA:  Absolutely.  Certainly that, from our perspective, would be a good result.  In the sense that at least we would have the opportunity to apply our statute in NH in most if not all of its application.

NC:  Thanks for being with us...Louise Melling is director of the ACLU Reproductive Freedom Project, a lawyer representing Planned Parenthood of New England, the respondent in today's Supreme Court case... She joins here...  As you heard, NH lawmakers said the health exception would render the parental notification law useless, because it would just be an enormous loophole that people could take advantage of.  Your response to that?

Louise Melling:  I obviously disagree with that.  The issue here is whether there should be an exception so that doctors can take care of medical emergencies.  Medical emergencies that not only endanger a teen's life but also endanger a teen's health.  If you look at the exceptions that exist in other states, first of all, their language doesn't in any way permit there to be a loophole, and, in fact, it shows that they aren't functioning as a loophole.  Teens are notifying their parents or going to court.

NC:  And therefore -- and again, getting back to this compromise that was proposed by Chief Justice Roberts -- is that something that's going to solve this, bring the NH law more or less into line with the laws in most of the other states on parental notification?

LM:  There are a couple of issues.  I think in today's argument, where we saw that justices clearly accepted and understood that you needed to have some protections for teens who face a medical emergency.  And then the question was what to do about it.  Then I think the question really comes down to whether the Court decides to write the exception into the statute or whether the Court then strikes the law and has the NH legislature fashion the exception in the way that the NH legislature would choose to do.

NC: And would that be, as we've just heard the Attorney General of NH say fine with her, would that be acceptable for your side as well?

LM:  I think what you heard Jennifer Dalven say today in court was, if the Court fashions the emergency exception and says the law applies in every instance except... medical emergencies..., that would take care of teens in NH.  But you have a different question about whether that's really the role of the Court.  Where the legislature consciously chose not to add a health exception, should the Court do it, or should the Court send it back and see what the legislature does?  We don't know for sure that the legislature would pass the law with a health exception.  We don't know what parameters it would put on its own health exception. 

NC:  Is the goal to get the health exception? or is the goal to get the legislature to enact it?

LM:  The goal is certainly to protect teens' health.  But the goal is also to make sure legislatures accept their responsibility to pass laws that are constitutional and take care of situations, as opposed to displacing all that role to the Court.

NC:  Well, if you put that argument to Roe v. Wade, that would put the decisions on abortions back in the hands of the state courts, wouldn't it?

LM:  No.  I'm sorry if I wasn't clear.  Here I'm saying there's a constitutional violation and you get that constitutional violation because Roe is the backdrop.  And then the question is, who writes the words that say medical emergencies are covered.  Is that taken care of.  Does the Court say, We carve out an exception to this law for medical emergencies, or do they say, Legislature, you rejected this idea, your law clearly has a constitutional violation, it's not our task as a court to make this up.  You, legislature, you now figure out if you want the law with the health exception or not.  We leave it back to you to decide whether you want the law you could have consistent with the Constitution.

NC:  Obviously, there's been no decision reached in this case, and it'll probably be months before we find out what it is, but as you saw the Court in operation today and listened to excerpts, I wonder, how was the Roberts Court different on this issue of such importance to so many people in this country?

LM:  I wouldn't actually presume to speculate. The Court was active.  The Court was engaged in the issue.  I was pleased that the Court seemed willing to hold firm to its idea that you have to have protections for women's health.  And then I don't know!

NC: We'll get some more listeners involved after the break...

NC:  Still with us is David Savage, Supreme Court reporter for the LA Times, and Louise Melling, director of the ACLU Reproductive Freedom Project... Let's get a listener on the line.  This is Jackie calling us from San Francisco.

Jackie:  Hi.  I was 19 years old in 1968.  I was a victim of date-rape and I couldn't get a therapeutic abortion in California.  I went to Colorado and wound up with a quack.  I was infected.  I came back to California and ten days later I wound up with a temperature of 106 and was admitted to the ER at 3 in the morning.  There was no decision made for three days on whether or not I could receive a therapeutic abortion because the doctors were concerned about the viability of the fetus.  When it was finally determined that my health was in danger, I was required to get a parental consent.  It was not possible to locate my parents.  So I went another day.  I'm just outraged by this situation.  I'm living with complications.  I'm sterile.  I'm 57 years old.  The only thing that's unusual about my story is that I'm alive to tell it.  I think that the health of teenage women is forgotten, and I hope that the Supreme Court will stop making jokes about lawyers being present in emergency rooms and remember that this is about the health of young women. 

NC:  Jackie, I know it's not easy to talk about things like that.  Thank you so much for calling us to talk about it.

Jackie:  I'm just calling on behalf of all the women who've died.  The only thing that's unusual about my situation is that I'm alive to tell about this horror story.

NC:  Louise Melling, let me bring you into this.  Obviously things have changed a great deal since 1968.  But that's the situation we're really talking about.

LM:   We are talking about situations where a teen's health would be seriously compromised if the physician had to wait for 48 hours mandated by the law or less.  What the doctor is supposed to be able to do, what the doctor is allowed to do when faced with those situations under NH law, the doctor cannot go forward under law and be challenged.

NC:  We know you have to leave us.  We thank you for taking the time to be with us today....  Let's see if we can get one more call in on this.  Gary.   Gary joins us from Kansas City.

Gary:  Hello. Thank you.  I'm an emergency physician and I'm greatly troubled by what I perceive to be the intellectual dishonesty of the Right to Life movement in this issue.  I guess the best way to summarize it is that there are abortions and there are abortions.  They consider a tubal pregnancy termination early on to be an abortion when in fact that's not a viable pregnancy and when in fact the life of the mother is in danger.  I'm highly insulted by the idea that, if I'm presented as an emergency physician with a patient who may happen to be a minor and who needs to have that pregnancy terminated to prevent that pregnancy from rupturing and causing her to bleed to death, I'm highly insulted that I would ever have to get permission of anybody to do the right thing to treat that patient to save her life.  We have emergency exceptions for treating patients and we treat patients without consent all the time in the Emergency Department.  This is but one more example of how sometimes its necessary to do the right thing when there's nobody to get permission from.  I'd also dare say there are physicians who are willing to commit civil disobedience to do the right thing for their patients rather than follow some misguided law.

NC:  One thing, Gary.  You sort of lump a large movement together, the Right to Life movement.  There are a lot of distinctions.  Not everybody would agree with that.

Gary:  I'd agree with you on that, too, but there's a faction of that movement that thinks there's no reason to end a pregnancy.  I respect people's rights to their opinion.  I respect the fact that different people based on their religious backgrounds and moral beliefs more or less have to object to abortion in various cases, because otherwise they would be sanctioning murder.  I respect that.  But I don't respect the idea that a doctor can't do the right thing to save a patient's life when that clearly is what needs to happen.

NC:  Gary.  Thanks for the call...  David Savage, before we let you go, NH is one of five states, as I understand it, that did not have the health exception.  If the Supreme Court issues the decision based on the compromise you were talking about earlier from Justice Roberts, would that cover the other states where there is no exemption?

DS:  No, not directly.  Though seemingly it would give doctors in those other states a means of accomplishing the same thing.  That is, go to court, and say on behalf of me and all other emergency room doctors, like the doctor who was just on the phone, faced with a medical emergency of a young girl, we can go ahead with an abortion.  Get an order that would allow that in advance.  Then the doctors would know that if that situation arose, they could move quickly.