Transcript of 'Democracy Now!' for October 12, 2007

Charlie Savage, winner of the 2007 Pulitzer Prize for National Reporting, covers national legal affairs for the Boston Globe with a focus on 9/11 issues. He has written extensively about President Bush’s signing statements and other White House efforts to expand executive branch secrecy and unchecked power. Warrantless wiretapping is one part of this story. Savage has just published a book charting the means the Bush administration devised to circumvent laws and expand Presidential authority. It’s called “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.”

The House Judiciary and Intelligence Committees approved a bill Wednesday granting federal judges greater oversight over the Bush administration’s warrantless surveillance program. Rejecting President Bush’s request, the bill does not provide retroactive legal immunity to phone and internet companies that shared information with intelligence officials. President Bush criticized the bill Tuesday and outlined his demands to renew the government’s broad eavesdropping authority.

Wednesday’s bill updates the Protect America Act that was pushed through Congress in August of this year and is set to expire in February of 2008. Although the bill restores some of the checks and balances removed by the Protect America Act it also increases other spying powers. It continues the policy of warrantless eavesdropping of overseas communications and increases the period of warrantless emergency surveillance of US residents. Also the so-called “basket” or “blanket” warrants issued by the secret Federal Intelligence Surveillance Court would only need to be reviewed once a year. The American Civil Liberties Union criticized this provision as “not anywhere close to the rigorous privacy safeguards Americans deserve.”

Transcript:

JUAN GONZALEZ: The House Judiciary and Intelligence Committees approved a bill Wednesday granting federal judges greater oversight over the Bush administration’s warrantless surveillance program. Rejecting President Bush’s request, the bill does not provide retroactive legal immunity to phone and internet companies that shared information with intelligence officials. President Bush criticized the bill Tuesday and outlined his demands to renew the government’s broad eavesdropping authority.

PRESIDENT GEORGE W. BUSH: The final bill must meet certain criteria. It must give our intelligence professionals the tools and flexibility they need to protect our country. It must keep the intelligence gap firmly closed and ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And it must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.

Terrorists in faraway lands are plotting and planning new ways to kill Americans. The security of our country and the safety of our citizens depend on learning about their plans. The Protect America Act is a vital tool in stopping the terrorists, and it would be a grave mistake for Congress to weaken this tool.

JUAN GONZALEZ: Wednesday’s bill updates the Protect America Act that was pushed through Congress in August of this year and is set to expire in February of 2008. Although the bill restores some of the checks and balances removed by the Protect America Act, it also increases other spying powers. It continues the policy of warrantless eavesdropping of overseas communications and increases the period of warrantless emergency surveillance of US residents. Also, the so-called “basket” or “blanket” warrants issued by the secret Federal Intelligence Surveillance Court would only need to be reviewed once a year. The American Civil Liberties Union criticized this provision as “not anywhere close to the rigorous privacy safeguards Americans deserve.”

AMY GOODMAN: Charlie Savage is a Pulitzer Prize-winning reporter from the Boston Globe, has written extensively about President Bush’s signing statements and other White House efforts to expand executive branch secrecy and unchecked power. Warrantless wiretapping is one part of this story. Charlie Savage has just published a book charting the means the Bush administration devised to circumvent laws and expand presidential authority. It’s called Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. Joining us now in our firehouse studio, Charlie Savage. Welcome.

CHARLIE SAVAGE: Thanks for having me on.

AMY GOODMAN: Charlie, you begin in a very dramatic way on September 11, 2001. Tell us about what Dick Cheney was doing.

CHARLIE SAVAGE: That’s right. Well, I began with this sort of unusual moment in the midst of the 9/11 attacks, in which the military believed that at least one more plane is still in the air and hijacked, and they asked Dick Cheney in the bunker beneath the White House whether they should shoot this plane down. And Cheney gives them authority to shoot down United 93, as it were. Now, it turns out that that was a moot point, because United 93 had already crashed amid the passenger uprising. They were looking at an image of where it would be if it were still in the air.

But this shoot-down order became the subject of an intense dispute with the 9/11 Commission, because Cheney later told the commission, and Bush agreed with him, that Bush had given Cheney prior authority as the commander-in-chief, who actually commands the military to take such an extraordinary step. But the 9/11 Commission looked at all the notes of the people aboard Air Force One and in the bunker, and they looked at all the switchboard logs from the bunker and the military of communications going in and out, and they found no evidence, no documentary evidence that that call existed.

And so, I use that moment to open this book, Takeover, because it’s a very vivid illustration of, first of all, the climate, you know, the atmosphere of 9/11, which really helped this push to concentrate more power in the White House, but also Cheney taking command inside the administration, especially in the national security context, Bush acquiescing to Cheney’s point of view, and then their effort -- their administration's effort to control the flow of information about kind of what’s happening behind the closed doors at the executive branch.

AMY GOODMAN: And when they had the 9/11 Commission hearing meeting, the insistence by Cheney and Bush that it not be sworn testimony, that Cheney be sitting physically directly next to President Bush, and that there be no recording of their statements made about this conversation, about whether Bush had given the actual command or whether it was Cheney.

CHARLIE SAVAGE: That’s right. You know, and, of course, it is a moot point. The planes were down. It doesn’t really matter that much, but it’s a vivid way of illustrating Cheney's role in the administration, and therefore getting into the topic of what Cheney used that influence to do. And one of the most important things and one of the most successfully implemented policies of this administration, one that they never talk about and that I think has received scant attention, just depending on how sweeping it is and how successfully they pulled it off, was that he had wanted, when they arrived in office long before 9/11, to use that time in office to reshape American democracy by concentrating more power in the White House, by expanding presidential power, by throwing off checks and balances.

This was an agenda that he had with him, dating back thirty years to his time in the White House as chief of staff to Gerald Ford in that period after Watergate and Vietnam, when Congress was re-imposing some checks and balances on the imperial presidency that had grown up during the early Cold War. And Cheney would spend the next thirty years trying to throw that off. Finally, as vice president, the most experienced vice president in history dealing with one of the least experienced presidents in history, he was in a position to shape this administration’s practices and tactics as it went forward, now pushing into eight years, in order to take actions and set precedents across a huge range of issues and ways that were going to leave the presidency much stronger than it was when they arrived.

JUAN GONZALEZ: And specifically the use of the signing statements, which, of course, was the subject of much of your reporting -- how did the signing statements fit into this overall policy?

CHARLIE SAVAGE: The signing statements are one tactic among many, but it’s an illustration of how much more aggressive this administration has been than any that came before and how it’s kind of thrown off sort of unofficial constraints, practices of restraint. A signing statement is an official legal document the President issues on the day he signs a bill into law. It consists of instructions to his subordinates in the executive branch about how they are to implement the new laws created by a bill. And it becomes controversial when the President says, “You will interpret Section 103 as being unconstitutional, because I alone have said it’s unconstitutional, and you do what I tell you. And if it’s unconstitutional, that means you don’t need to enforce it.” And where that becomes very controversial is when Section 103 is a check or a balance on the President’s own power, because then not enforcing that law means not having to obey that law.

Now, previous presidents have occasionally used signing statements like this, but President Bush has challenged more laws than all previous presidents in American history combined, using signing statements, a dramatic escalation of this tactic, in what the American Bar Association has said is evolving into kind of a backdoor override-proof line-item veto power, which can really prevent Congress from ever again imposing any new checks on presidential power. It’s just but -- it’s an extraordinary thing, an extraordinary development in our constitutional law, and yet it’s just one of many, many different tactics the administration has used to concentrate more unchecked power in the White House.

AMY GOODMAN: Talk about wiretapping, the controversy now, the frustration that people have with the Democrats, supposedly the opposition party, going along with the Republicans.

CHARLIE SAVAGE: Well, the background is that after 9/11, as we all know now, Bush gave the military the authority to wiretap phone calls without warrants, in defiance of a 1978 law that required warrants for that situation. And he used a very aggressive legal theory about the President's powers as commander-in-chief to bypass laws at his own discretion. Because that program was only legal if that theory were true, that meant that the fact that they did this set a precedent that says that theory is true, and future presidents will be able to cite that precedent when they want to evade any other law that restricts their own authority.

So now, going forward, one of the ways this agenda has been able to be so successfully implemented was that there was no resistance from Congress. At the very moment there was this stronger push coming out of the Vice President's office to expand the presidential power as an end to itself in any way possible, because of one-party rule for six years and because of the atmosphere of crisis after 9/11, there was no push back. And that’s how the ball was moved so far down the field.

And one of the things that’s been very interesting about the last year is now we have split control of government again, and so the question was, how is that going to change things? And what we’ve seen from the Protect America Act in August and the dynamic going forward is that even with split control of government, the dynamic is still there. Congress is just as it was for the first twenty or thirty years of the Cold War, when the original imperial presidency was growing under presidents of both parties, by the way. Congress is again unwilling to push back against the White House's assertion that it needs ever more authority, and checks and balances will result in bloodshed. And so, I think, going forward, that you can see that this dynamic is going to be with us. And, of course, two years from now, we may have one-party control of government again, the other party, but that will just sort of hurl us further down this path, I think.

JUAN GONZALEZ: And this issue of the President seeking to protect those in the corporate world who go along with his policies -- well, first of all, obviously, there was the retroactive immunity to the airline companies after 9/11 for their failure to act to provide a kind of security on their planes, giving them immunity from any possible lawsuits, and now this effort by the administration to try to provide retroactive immunity to the telecom companies that went along with his surveillance program.

CHARLIE SAVAGE: Well, and what this is, is because Congress has demonstrated that it’s really not going to do anything about the basic fact that the President asserted he could bypass a law and then he acted on that assertion, and, you know, that established he can do that, or whoever else is president at any given moment from now on can do that, that the one sort of last place where critics of this sort of extraordinary development could still have some traction was the lawsuit against the companies, which had also evidently broken privacy laws by going along with this. So, by seeking retroactive immunity, it’s sort of the last place closing off the possibility of accountability.

And accountability for how people use their power is one of the great ways in which the administration has successfully expanded their own powers, as well. For example, by dramatically expanding secrecy surrounding the executive branch in all kinds of ways, going after open government laws, expanding executive privilege, expanding the use of the state secret privilege to get rid of lawsuits in courts, and on and on and on, what they’ve done is they’ve made the executive branch much more of a black box so that outsiders, whether Congress, the courts or just voters, don’t know what officials are doing with these powers at the very moment that the powers are being dramatically increased, and that means that the officials who have that power, whoever they are at any given moment, are much freer to do whatever they want with them.

AMY GOODMAN: Charlie Savage, how is the Bush administration remaking the Civil Rights Division in the Justice Department?

CHARLIE SAVAGE: This is another example of the myriad ways in which they're concentrating more power in the White House, in this case centralizing greater control over the permanent government, the bureaucracy. There’s eight or nine case studies in my book that explain different tactics for this, which have been very successfully implemented. One of them is in the Civil Rights Division of the Justice Department, which is an agency set up by statute with a mission by statute of enforcing the nation's civil rights laws, primarily to protect minorities against discrimination.

Conservative presidents have long tussled with his agency, because they have different ideas about, you know, how much affirmative action should be part of these kinds of things. But no president, until this administration, has messed with longstanding traditional procedures for hiring career lawyers in the Civil Rights Division. And even under Reagan, even under Nixon, they never went this far.

But what this administration did, starting in 2002, is they changed the procedures, whereby -- if there was a vacancy in the career ranks, previously career veterans would decide who should fill that position, and that meant that they were still hiring people who had a demonstrated commitment to enforcing civil rights laws. In 2002, in an unprecedented step, the administration changed that and centralized control among political appointees for hiring replacement career lawyers and stopped hiring people with a demonstrated commitment to enforcing civil rights and started hiring people who are members of the Federalist Society and who had no experience on civil rights law, or if they did have experience, their experience was fighting against the traditional enforcement of civil rights, defending companies against discrimination lawsuits, and so forth.

And so, they’ve been remaking that division as a way of sort of behind the scenes seizing and imposing greater political control over it. Lawsuits alleging systematic discrimination against minorities have fallen -- against African Americans, that is -- and the agency is redirecting its resources now towards reverse-discrimination against whites, discrimination against Christians, these sorts of things that are more in line with the President’s agenda, just one more example of centralizing greater control in the White House.

AMY GOODMAN: We have ten seconds. Do you think the takeover is complete?

CHARLIE SAVAGE: I think this has been the single most successfully implemented policy of this administration, and I think that presidential power acts like a one-way ratchet. It’s easier to increase than it is to roll back again. And I don’t see, because of the continuing dynamic of the war on terror, this being reversed.

AMY GOODMAN: Charlie Savage is the Pulitzer Prize-winning journalist, won in 2007 for his reporting on this issue. Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy is the name of his new book.