 So, welcome to the last of our discussions about the presidency and the court, this one being about the presidential powers. And first, I'm going to introduce very briefly everybody on the panel. To my immediate left is the inimitable and indomitable John Q. Barrett, of whom you've heard much, a professor at St. John's Law School, and the living, breathing Jackson scholar, and those of you who aren't on his list, you should be, his email list. And sitting next to him is John Dean, who served as counsel to President Nixon, star witness against President Nixon, a distinguished professor himself, visiting scholar at the Annenberg School of Communications at the University of Southern California, and he's written a ton of books. I'm not going to tell you what they all are, but I always tell you what the latest one is, if it's just out. And this one is called Broken Government, How Republican Rule Destroyed the Legislative Executive and Judicial Branches, subtle, very subtle. And next is Beth Nolan, who is about to become counsel for George Washington University, and who served as counsel to President Clinton, and sitting next to her is Anthony Lewis, who won a Pulitzer Prize for covering the Supreme Court for the New York Times and went on to write one of the most notable columns for the New York Times for, I don't know how long, I'm sure he will, will and can tell us. And lastly, Ambassador Boyd and Gray, who served as counsel to the first President Bush, has very graciously agreed to join this panel because I viewed it as a little bit politically tilted. And he was here, and with no advance warning, he has incredibly graciously agreed to be on this panel, which as I say is a little bit of ganging up on him, I think. And he has to leave early because he has another, he has to go into the city. So I'm going to get him out of here a little early, but he has my eternal gratitude for agreeing to do this. So just as a short overview, we don't have any long prepared stuff. I don't have to interrupt anybody on this panel, but they all do have things they do want to say. So every president in modern times has claimed significant executive power, and every president in modern times, as far as I know, has claimed more executive power than he got away with, even FDR who tried to pack the court, Truman tried to seize the steel mills, Nixon claimed immunity from the criminal justice system, Clinton from the civil justice system, Reagan from congressional oversight, and Bush from judicial and congressional oversight not to mention, to some extent, in terms of a new secrecy regime, public accountability. So how much has President Bush changed the equation here? He got pushed back by the Supreme Court three times so far, but every time he's gone back to the well in Congress and he got pretty much what he wanted when he asked for it. And neither the court nor the Congress has really pushed back on a lot of other subjects. The administration, to cite just one example, it's small, but it is, I think, emblematic, still has not allowed the Judiciary Committee of the Senate or the House to see the legal opinions, just the legal rationales, issued by the Justice Department on torture. What's more in an era when government can tell with far more precision who's talking to whom, I would argue that, at least until recently, leaks were harder to come by. So I have a way to start this off, which is, do the panelists think that the Pentagon papers could have been published today? Let's assume a New York Times reporter gets hold of a report compiled by this administration on how we got into Iraq and what our real prospects are for prevailing there. First of all, would the New York Times publish it? Would the Washington Post publish it when it caught up a couple of days later? Well, that's historically accurate. Would the administration try to stop it? And would the courts intervene to prevent the administration from stopping it? So I think, Tony Lewis, you were actually there, working for the Times at the time of the Pentagon papers, so why don't I start with you, and then I'll go to Boyd and Gray and then come up the lines, so to speak, or anybody can jump in. It doesn't really matter. I just want to get this started. Well, Nina, I thank you for starting with me, but I wasn't, in fact, there. I was in London for the New York Times. Well, you, but you weren't working here. I've thought about it a lot since and taught the case every year for about 25 years, so I'm prepared to answer your question. The answer is yes, the New York Times would publish it, publish that material. There was a brief period, not so brief, unfortunately, after the invasion of Iraq, when I think the answer might have been no, the Times and the Post were both very lax in their coverage of the process of getting into the war, and then some months later we both amazingly published apologies on behalf of the management for our lack of curiosity and diligence in uncovering the process that led to the war. So I have no doubt now in the light of what's happened since, the reporting on matters such as warrantless wiretapping, the existence of the torture memoranda, the existence of secret prisons abroad, which that was a great Washington Post scoop. We should give credit where it's due. And I have no doubt now that we publish. And I'm inclined to think that if the same process happened as in the Pentagon papers, crucially, the New York Times published for three days before court injunction stopped us. I say it's crucial because if the Nixon administration had known about it, didn't know we were going to publish, and had stopped the publication, gone to a court before anything had been published, there would have been much easier for the government to speculate about how damaging this material was going to be and how it would destroy the country and the North Vietnamese Army would be walking down Broadway and all that. When three days had been published, and it was obvious to anybody who read them that that wasn't the case, that it was history, and that it wasn't likely to have any effect, certainly the trial judge, Judge Gerfine, thought it wouldn't have any significant effect. And if the same process adhered here, and something had already been published, I think the courts would not sustain an administration effort to stop the publication. Gordon Gray, what do you think? And do you think, in my hypothetical, do you think it should be stopped? No. And I don't think it would be. And I think, parenthetically, if you want to know why we're in the war in Iraq, I think there's been plenty of disclosure, not in an integrated document like the Pentagon Papers, but there's been plenty of disclosure, much of it, I think, probably unwelcome by the White House. And one issue I want to throw in here, and I don't want to distract, but the reporter's privilege has been watered down, too, which I think is also a breach into, if you will, into secrecy in a perverse sort of way. But that's a factor, too. And if you look at the Plain case, a lot came out in the course of that prosecution. I'm not sure it was journalism's finest hour, but it has led to even more access, I think, rather than less. And the short one, although in the long run maybe, Tony Lewis would persuade us that any infringement on the reporter's privilege is a long-term disbenefit. But I do think it's relevant to the debate. I wonder, two things, whether, first of all, somebody who wanted to leak it would have access to that kind of information today, because there's been such a much closer hold on information so that even we know, even the legal opinions written by the Office of Legal Counsel at Justice weren't provided to the agencies they affected. So I think the chances of something like that being leaked today would be quite different. And then, secondly, I doubt it would ever get to court. I think what you'd have is the White House going to the New York Times and trying to prevail upon them, not to publish, except Tony's view that the Times would anyway. But I don't actually know, depending on what information the White House provided, whether that would happen or not. Nina, can I just throw something in here, even though I've had a turn? In fact, maybe in partial agreement, but only partial with Beth, it took the Times a year after the White House went and talked to the New York Times. It took the Times a year to decide to publish the story about warrantless firetapping. I was there. Not true. And Tony, maybe it's a good thing you weren't because the first request I had from the President was the old 1917 Espionage Act with criminal sanctions available against the reporters at the New York Times. I actually ended up sending that information over to Bill Renquist, who was then the head of the Office of Legal Counsel. Bill was out of the office at the time. He had a bad back and was home recuperating. So his deputy, but I'm sure Bill was involved in the sifting through of the decision, Tom Kuiper came back with a memo saying, yes, they probably are liable, but it's been the long-time policy of the Department of Justice not to prosecute criminally for this type of offense. I don't know if you're going to stay on this subject, but of course that was just the opening shot because a few days later when Henry came back who had been out of town, he would change the President's mind about an awful lot of things and we would march forward to what became U.S. versus New York Times. But we can explore that if you want to. I deferred all of this. I was a 10-year-old in Milwaukee at the time. You were not supposed to do that on this panel to make us all feel old. But I read and watched them on TV. I think Iraq in 2007 is too easy a hypothetical because we have traveled a huge distance in the public concern and the journalistic culture. I think a better, tougher hypothetical is a report concerning Iran and reports concerning, and this is entirely hypothetical, I have no clearances or knowledge, ongoing covert team deployments in Iran, let's say, or let's say Pakistan and ongoing intelligence gathering, factional infiltration, security, leadership, instability, coup assessment in Pakistan. If that were the report, a front burner contemporary issue where we haven't culturally traveled a huge distance, I think it's probably a tougher question for the New York Times. I deferred to Tony and journalists on that. I think it's probably a closer question for the Department of Justice, even with new and I think more capable sober leadership today. If it pursued some kind of prior restraint, I think one more piece to add in that's significant is the new state secrets culture that is part of our litigation landscape under the Bush administration, particularly in the context of civil cases arising against phone companies for privacy statute violations and so forth. It's not a damage assessment claim of privilege, which was the kind of argument that Erwin Griswold made in the Pentagon paper's case, that the sky would fall if the publication continued. It instead is simply an argument for privilege and thus immunity from judicial process based on the fact of classification. And that is not a new development, it's something that's existed in our law for 50 or more years. It came to the Supreme Court in an odd wrongful death action in the 1950s, but it's been dusted off and used aggressively in litigation today. And so if this proposed publication resulted in the proposed action of some kind and got into court and a court was proposing to adjudicate this in a hostile way, there's a different argument to sort of shut that judicial restraint down. It's an executive branch classification power against judicial accountability. And that's a very live matter. I think that this administration would argue that as it has in a whole variety of other contexts that this is a different kind of war than we have ever been in before. And that therefore the rules are somewhat different. The position of any president has to be much more aggressive. And that a kind of secrecy that we really haven't tolerated except in the middle of a kind of censorship kind of regime of a battle front more traditional circumstance is tolerable in our civilian court system. I'm wondering what everybody's thoughts are on whether that's at all justified. Well, Nina, can I drop in here just, I think we are distinguished between surveillance of US citizens and surveillance that may take place with US instrumentalities of foreign potential terrorists. And a couple of, my memory's a little bit down there because I was given too little time, no time to sort of prepare for this. I couldn't refresh my memory about the disclosure which caused bin Laden to stop using cell phones. But there was a disclosure of sources and methods which did cost us an extremely lucrative line into what he was doing. More recently- You think that was in court, actually? It may be, but more recently the New York Times, I believe, rather regrettably, and I think they've apologized since, revealed the existence of the Swift. How many people here know of Swift, which is good that nobody really knows about it because the New York Times didn't do that much damage. But it caused huge problems in Europe. Swift is a mechanism by which Treasury will sift through huge amounts of commercial transactional data to try to find money transfers abroad between terrorist organizations. It doesn't really involve US citizens, but there has to be some safeguard to assure the public that that, in fact, is the case. The White House mishandled it because they should have alerted the European authorities where the sensitivity arose. They should have alerted the EU authorities that this was happening, so they weren't blindsided when the New York Times published it. But it's a very, very valuable resource and the question that has been raised since is how much value was lost when the Times published it? How many leads have been dried up? How many possible plots have been lost because of the publication? John Dean, let me ask you, since you raised the subject of what happened with the Pentagon Papers and you said things changed when Henry returned. So this is, after all, a presidential library's discussion. What changed without getting into such enormous detail, but what changed and how did that play out? Well, if you recall what happened the weekend in June that the Pentagon Papers were first published on the front page of a Sunday New York Times was the same weekend that Trisha had her wedding at the White House. And the president went in and looked at the Sunday paper, really for the see how the coverage of the wedding had been. And there he saw this enormous column about the history of the war in Vietnam. And his initial reaction, at least what I was told, was not that particularly negative. He thought this indeed might be good because it was going to make the Democrats look bad. So he wasn't concerned. And it wasn't until Kissinger started telling him that he as a negotiator for the government first in Paris with their secret negotiations with North Vietnam would be having trouble if the North Vietnamese did not believe the United States could keep its secrets. And the button he really pushed that got Nixon's attention was that this could indeed jeopardize the plan China initiative. That's when everything changed. There are fascinating tapes. The change that first came to my attention with a fellow who had been assigned to my staff walked in a former New York City detective and he was wide eyed. And Jack Caulfield wasn't somebody who was wide eyed at many things at all. But Jack came in and said, I just came from Chuck Colson's office. Colson wants me to fire bomb the Brookings Institute. I said, come again Jack. And he explained that Chuck said that the president believed that there were a copy of the Pentagon Papers in the Brookings Institute and that he wanted the plan would be to have a fire bomb and when the fire department responded that Caulfield was to arrange to have burglars to go in and crack the safe. And he said, you're not serious. He said, Colson is deadly serious. I said, Jack, don't do a thing. The president wasn't there. The senior staff was in San Clemente. So I figured this was going to take an eyeball to eyeball meeting. So I flew to San Clemente on the next courier flight and got a hold of Ehrlichman the next morning and explained what I had heard. And I said, John, I said this is just insane. In fact, I had pulled the statute off of my shelf and said, you know, it is a capital defense in the District of Columbia if somebody dies as a result of arson. And I said, what if that's traced right back to the White House where it seems to be coming from? He looked at me over his glasses and he then picked up the phone and got the Chuck Colson on the phone immediately from the White House operator and said, Chuck, young counsel Dean is out here and he doesn't think the plan for Brookings is very good. Call it off. And he looked at me and he said, anything else, counsel? And I said, I said, that'll handle it this morning and returned to Washington. That's how things changed. So, but... And incidentally, the Brookings Institute has never thanked me for saving their building. Interestingly, Kissinger's objections to the publication strike me as well as a reporter or even a citizen. I don't buy them as a justification for a prior restraint. They are nonetheless not crazy concerns. No, they aren't. So, and this administration in a really novel situation of terrorism has many concerns that are not crazy. The question is, how do you draw the line? And historically, each one of the many demarcations that we've seen, people are always coming into new situations. I'm sure that President Roosevelt thought that the threat that Adolf Hitler posed was everybody serious is the one that we think is posed by terrorism today. And there are some things that he did, like the internment of the Japanese, that we're all ashamed of today. So, how do we know which are the things that we're going to be ashamed of and which are the things we shouldn't do and which are the things we should do? Let me ask, put that to the councils, to the presidents. I'll start. I don't think you ever really know. What you have to do is have a system for decision making that takes account of everyone's constitutional role in those decisions. And that means, I think, appropriate consultation with Congress. It means getting statutory authority when you need it as opposed to just deciding that you don't want to follow the law. I do think there are times when it's appropriate for a president to determine that a law is so unconstitutional that the president will not implement that law. But I don't think that can be a regular or should be a regular occurrence. And so I think it's a matter of using the expertise in the executive branch and making sure that you're not cutting out the people who have the greatest expertise in certain areas in making those decisions. So I really think it's a process question and you still may end up wrong, but at least you'll have done your best. Ambassador Gray? I partly says that, I agree with everything Beth Nolan says, but my difference might be that I think that where the action is, is further up the line. If you're going to try to anticipate things, you have to get back into the organizations that you're combating. And there the question really becomes, how do you deal with your allies? How do you share information with your allies? And then when the information comes in, how do you share it internally? The FBI still, to my knowledge, does not have the capacity to Google itself. In other words, you put in airplane flights and you can't Google all the stuff that's in the system at the FBI and come up with an ability to connect the dots. They still don't have the technology to do that. And at least they didn't the last time I looked. And if they had that, I think 9-11 could have been averted. But I think the big focus is, I mean, I'm sometimes worried that we get too obsessed with a memo here and a memo there. I'm not saying that some of these memos can be justified. The White House and the Office of Legal Counsel pull back some of them. But I do think that the more difficult questions come with how do you organize this with your allies? How do you do these intelligence operations abroad? I think it's true that anything that involved the placement of assets in a foreign country, the President has to sign a finding. And that is communicated to the top people in the House and Senate. And sometimes they have been known to run straight to CBS and disclose it to the world. But generally speaking, it's been pretty airtight. I don't know that the public should know about that. I think there are enough checks and balances in the system. But to me, that's where the key issue is. If you're dealing with a captured agent somewhere, then you're awfully late in the game. I think the idea really should be to organize yourself to catch this stuff as it's beginning. And that is not so exotic and not so romantic, but still extremely difficult bureaucratically. Well, the way we were organized for quite some time was repudiated by the Supreme Court in Hamdi, in Hamdan and Rizul. And Hamdi probably is the quintessential case because that involved an American citizen actually captured on the battlefield in Afghanistan. He says he was turned over for bounty by some warlord. But whether or not he was, in some respects, irrelevant because we let him go eventually. Once the Supreme Court said you're going to have to either come up with the evidence in some fashion or let him go, we let him go. There have been a lot of extraordinary assertions of executive power and limited to very few people within an inner circle in the White House. And I know that, and the question is how much we can allow that as a free society to go on and still call ourselves a free society, Tony Lewis. Was that Tony? We were going to finish the, you wanted the council to finish on. I thought you already said what you said. No, I had. Okay, all right. Could I say something about the previous question before we get on to your very important new question? I think you gave Henry Kissinger a free pass, quite unjustifiable. I think Kissinger's expostulations about the need to go after the Pentagon Papers and the New York Times were outrageous and motivated by factors that had nothing to do with the national security. The Haldeman Diaries say that he said, we might as well give up our government and turn it all over to the Soviet Union. We can't keep a secret. Mao will never talk to us now that he sees the New York Times publishes everything we do. Now I want to ask you, Mao Zedong changed the policy of his entire life and decided that it was an urgent national interest of China to engage with the United States. Is he going to look at a headline in the New York Times and change that? That's a joke. That's just a joke. And furthermore, six months after the Pentagon Papers case was decided by the Supreme Court, the toughest man in the Justice Department, the head of the internal security division, Robert Martin, prosecuting Daniel Ellsberg, asked the Pentagon for some backup on how serious this violation of classification rules was in the leakage of the secrecy. And he wrote a memorandum to Attorney General Mitchell saying, the Pentagon answered my question. It's all rubbish. There are no secrets. They can't tell me anything. That was the great secret of the Pentagon Papers. And we've got to be skeptical, ladies and gentlemen, when they claim the House is about to fall down or the sky is about to fall. Check it out. As the Solicitor General himself later learned and regretted having argued the case as aggressively as he had, we were following up along on the former White House counsel. I'm losing control here. On this question, on process you were really raising, but really it's a policy question too of how we would deal today with the situation of terrorism and is there the justification? Well, obviously I think Borden is correct. The decision has been made at the top this time. The process that Beth mentioned has not been employed and the decision has been we're at war. We haven't even looked at the other alternatives and we've classified this as World War III for all practical purposes. I'm not so sure that's a correct classification. Most of the reading I do, a lot of experts in this area seem to think it isn't. You can't end terrorism with war. You can't kill gnats with cannons. You need very effective law enforcement and you need very effective diplomacy. This is a very widespread problem and to make the decision based on the fact that we're at war makes it very easy. And then when you look at the memos that are justifying the actions based on the fact that we're an emergency situation that we are at war. And I'm thinking specifically of the memos that people like John Yu cranked out early and justified things like torture, going to war in Iraq, getting around the Attorney General and back channeling it right into the Vice President's office. These are really quite extraordinary documents not only in the procedure and process that was followed, but in the content that was involved in them. They border on fraud as far as intellectual honesty. Let me take a quick historians cut on Nina's question. How do we know today if a proposed executive action is justified or will be one of those disasters that we regret? And I think the short answer, I don't mean to be flip about it, is we won't know till later. It really is a process in risk question now. And it is an executive branch responsibility of great weight and hopefully great sobriety and expertise as those decisions are being made. I think the process is not simply the first decision, but also the reassessment process, the closing of a course of action. For example, and I think this is not controversial in the historiography of the Japanese American internment, it is easy to look at that story in 1944 and be horrified and say that it had become indefensible. And guess who said that first? It was the Roosevelt administration through the War Department that announced its closure of the camps on Sunday, December 17, 1944, which is the day before the Supreme Court decided the infamous Korematsu decision and the completely forgotten Endo decision. It's the slow and refusing to reconsider course that is in history's eyes a serious process problem. You think that was really re-looking at it, or do you think that they were worried about what the court would do? I think they had a leak and they were getting out ahead of the court if only by a day. The court, as few remember, actually struck down the internment system. That's what the Endo case is about, a concededly loyal American. No evidence of her disloyalty, and the court holds unanimously that her incarceration is illegal. What the court is upholding in Korematsu, three years into this horrific system, is the exclusion that threw young Fred Korematsu out of San Francisco and sent him to a race track to report for further shipment inland to an internment camp. And that was not a real question in 1944. It may well have been, or a curfew may well have been, in the second, third, and fourth weeks of December 1941. And where an executive branch fails, I think, is when it stops looking at its watch. When it says we are on a course, this is our course forever, the stakes are always the same. The stakes change, and history will look back on a process that hasn't recalibrated and find a disaster much more than it will look back on a careful, ongoing process, because that will be more sophisticated and careful. Hasn't this administration, in fact, to some extent done that? I mean, it got worried about in Hamdi that he hadn't seen his lawyer for the whole time he'd been. Then suddenly the case goes to the Supreme Court. The court surprisingly agrees to hear it, and, oh, hello, you can see your lawyer now. I mean, that's very much the same kind of thing, isn't it? Yes, it is. Although in today's war on terror, I would say that the legal issues the Supreme Court has dealt with really nibble around the edges of the major executive policy questions. The purchase that the legal system and the courts has been able to get is on the enemy combatant designations, Guantanamo as a facility, and the availability of habeas corpus. That doesn't get to the huge questions. Iraq troop surge or withdrawal, military attacks, closing Guantanamo, ceasing rendition, torture if we're doing it, et cetera. Those aren't questions that the court can touch. The court is out on the periphery, but the president is at the core. And so those are things that I think this process question that Beth and the other White House counsel has spoken to is really focused on. Let me ask Ambassador Gray something before we lose him in about 20 minutes. Jack Goldsmith's very interesting book draws a parallel between, or a contradiction really, between Roosevelt and President Bush, and says that even though President Roosevelt did a lot of things that are sort of right on the cusp of legality. Len Lease and a couple of other things. He does everything in his, in the destroyer thing. He does everything in his power to get the other branches to sign on and to make his administration as bipartisan as possible. So he brings Republicans into top jobs in his administration as Secretary of War, Secretary of the Navy, et cetera. He consults extensively with Congress in a bipartisan fashion. He threatens Congress. He basically says, you do this, and if you don't do it, I'm going to do it. But he does, he plays all the angles in a way to achieve some sort of a bipartisan consensus that allows him to do what he thinks is necessary for the national security. And Goldsmith faults his former boss, the President of the United States, President Bush, for not doing that, for limiting, in fact, to the tightest group possible in the White House, these decisions, for not really consulting Congress, for not bringing in people from the opposition party into the administration, for not even consulting the Jags about key things involved in everything from Guantanamo to the way questioned people who are captured. He faults this President for not following the Roosevelt model, and thereby it's his argument, Boyden, that this President and the last analysis injured executive power. Is that unfair? I've been maybe blissfully out of the country for much of this, but it's a very good question. My experience was, and we have a senator here, and he's not going to be able to speak unless you give him the microphone, which I think would be a good thing to do right now. When you leave, we'll get him up here. In recent years, which I don't think happened in the Roosevelt years, in recent years there's just been a pattern of senators getting these very, very good nuggets of information and then leaking them. Don't ask me to give you chapter and verse, but one senator, I think, was relieved of his... No, I won't go in. But it has happened too many times. So I, in some ways, am quite sympathetic to the President. I'm wanting to share information. Now, were some of these memos overdone? They were overdone. It's Goldsmith's right that the backlash ended up doing more harm than good. I think on some aspects of that, from what I've known and what I've been able to read, Goldsmith's probably right. But people do make mistakes, and nobody's immune. If you really look at the big picture, though, I'd like to ask the people up here, the panel up here, especially, well, the professor, but do we have two professors? Beth, are you a professor? Not anymore. Not anymore. You know, Rosa, ex-party querin, where he took the German saboteurs, and that was pretty rough. Maybe ex-party querin's not been overruled. I could never quite figure out in trying to read the Hampton decision whether the current court has overruled ex-party querin. But that's a pretty tough thing, as was the recitation yesterday by Justice O'Connor of All the Laws But One. In time of war, in time of stress, the Presidents have done some pretty rough things. And if you take the suspension of Habie Corby, you take ex-party querin. I'm not sure that anything President Bush has done is as sweeping as either of those two assertions of power. I've been given permission to follow up. You don't need my permission. I'll ask you a question about when you were there. I'm thinking of when Bush won, went to Kuwait. And the way the process was followed there, and indeed a strong coalition was assembled, a lot of time was taken, and a Secretary of Defense by name of Cheney was arguing to the White House, maybe to you, maybe to the President directly, we don't need the permission of Congress to do this. We don't need this coalition to do this. In fact, he was trying to sell a secret plan around the Joint Chiefs. Is this the sort of thing that, can you tell us any about how this was rebuffed and how the coalition was built? The coalition was built by the President from almost from day one with the grand assistance from Secretary Baker and Pickering at the UN. I mean, I don't know anything about this secret plan. It is true that Gates did not want to go to Congress to get advanced approval. Authorization used force. But neither did Sununu, neither did Scowcroft, nor did Baker. The only people who wanted to do it were the President and Quail and me. But we did it, and it was very, very close, as you probably know, 51, 49 or something like that. But it was a great, great thing to have done, and the President was quite determined. I mean, he wasn't going to be here, no from anybody, and no came from almost everybody. And there's some great scenes. You know, I can remember being dispatched to go down to the hill to meet with Dole, who was then, I guess he was minority leader. We didn't have control of the Senate. But everyone in his caucus was there. Everybody, all 46 senators, there were what to do. Where were we? And so, it's Scowcroft and it's Gates, and it's me, and a little old me. Gates or Cheney? Excuse me, Cheney. Cheney. And permit me to tell this anecdote. So Dole says, all right, here's the state of play. We have the Solars Amendment, which authorizes the use of force. That's past the House. We have the defeat in the Senate of a non-michael. I have the votes to defeat non-michael in the Senate, which would deny the use of force. Right now, I don't have the votes to get Solars to authorize positive use of force, but I don't have the votes yet. I don't know that I can get them, but I have defeated the negative. And I propose, gentlemen, that that's enough. And is that not enough for us to go forward? And I looked at Scowcroft and I looked at Cheney and neither of them said anything in the seconds ticked by. And, you know, what am I going to do? And because I have discussed this with them. So I say, no, Mr. Leader, that's not enough. We actually have to have law here, and the Solars Amendment has to pass the Senate. And without any hesitation, he slapped us in the inset. Well, if that's the way it has to be, gentlemen, that's what we'll try to do. And, you know, did Cheney sit there and say, no, no, no, no, and start screaming? No, no, no. So I don't know what you're talking about. He was just telling the Senate that the President didn't need to have the authority that you were telling him they needed to have. Well, I don't know that he was telling the Senate. So when anyone ever told the Senate that he didn't need authority, and the President sought authority, and his son did it twice, both for Afghanistan and for Iraq. Now, you can argue, well, G-Wiz, maybe there's some misleading stuff in there. And I will say that the yellow cake, the 16 words, all of that, we've been through it all. There's no reason to go over it. But I would also remind people that there were 17 UN resolutions that were in violation, including the ceasefire arrangement 10 years before of the First Gulf War. And there was plenty there to justify the use of force, whether it would have gotten the votes it got. I don't know. I mean, I wasn't counting votes. But I mean, I think we can go overboard in testing all this deployment. To me, the big issue is, well, it's the gathering of intelligence. And I think generally speaking, that involves things a lot more boring than torturing people. And I don't think you need to do that. But if it had to happen, as Dershowitz wrote recently in the Wall Street Journal, with certain safeguards, there isn't a President who wouldn't do it if you thought it would save lives. And there's no reason why a President shouldn't be able to do it if you knew you're going to save lives. But the big issues are whether to deploy, put people in harm's way, soldiers in harm's way. And that is not something a court's ever going to get into, in my opinion, and at least not the Supreme Court. And I think one district court did during the first Scull 4. But there, it's a political question. And I believe the current White House has done it fairly above board and perhaps too effectively for some of the people in this room. The Congress was never able to get its act together to cut the funds recently, this last fall, summer and fall, in Iraq. But I don't think you can say it's abuse of power. He's doing that openly in negotiation, in bargaining, and back and forth with the Senate of the United States quite openly. Do you think that the Senate and the House, when they authorized the use of military force in Afghanistan and later in Iraq, do you think that they thought they were actually authorizing the other attendant policies that the administration now claims were authorized, everything from warrantless wiretaps to certain interrogation techniques to, you name it, the administration claims that the authorization of use of military force encompassed a great many things that a lot of people who voted for them apparently don't think they voted for. It's a very good question, but authorizing use of force, I think subsumes within it the attention, the attaining, the gathering of intelligence necessary to do it in such a way as to be successful and to save lives. So intelligence is the critical aspect of war-making. And now in some of the places where you have extant law and you're ignoring that, then you're in trouble, unless you are really on solid ground. I have no doubt that if you parse through all of this, the White House has made its share of mistakes, but no more, I think, than any previous administration. You know, I may be, Beth can talk about, one of my sort of thought was amusing, I think the correct me if I'm wrong, Beth, and I don't know whether you were there at the time, but the Balkans, there was no use of force, and in fact, I mean, no authorization for it. They just went in and used it. My recollection is reading one of my former staff showed it to me, the justification for avoiding an authorization to use force. They went under the War Powers Resolution, which allows you to deploy force for 60 days before getting permission. After 60 days, you've got to pull them all back, which is kind of why it's sort of a goofy law, which is why it's never really been applied. But as I'm told, the Clinton administration employed the doctrine very elegant of intermittent hostilities, which means that the 60-day clock starts running every time a shot is fired, and then there's a gap between the next shot, and then the 60-day clock starts again. It's a doctrine of intermittent hostilities. Now, maybe I'm making stuff up, but there was no authorization. My bad. Is he waking stuff up? I wasn't there. I think that's a little... But you agree there was no authorization used for... I think that you're turning the question around, though, because I think what's important here is not... As you said, we're in a wreck. We got there. That's done, as you said earlier. The questions I thought Nina was asking, which I think is a really important one for us, is what happens now with all the collateral decisions that have to be made with respect to the war on terror? And I think we have to understand it's, first of all, the president has a terrible burden in dealing with this. I wouldn't want to be president. I wouldn't want to have that burden. I think we all have to respect that and understand that very hard decisions have to be made. But they are being made for our country. And they are being made for our country in ways that may affect our country forever. And the questions are... The questions to me, the important questions are, how do we make sure that our Constitution is honored in making these decisions and our Constitution, by our Constitution being honored, I mean, how do we make sure that to the extent possible the relevant constitutional actors are playing their roles? And one of the things, Nina, you mentioned Jack Goldsmith's book. I thought one of his really telling points was... And we heard this earlier, I think, from Heather, too, about the president and the court have to act in some ways. Congress, both because it's a large body that doesn't act by itself but has to act with agreement, Congress often has to be pushed to act. And I think the description of what Roosevelt did in a way is that he understood that was his responsibility and his role. And I don't think that President Bush has been working with Congress in the same way. Tony, Lewis, you had something you wanted to say. Several things by now. First of all, I wanted to say something to Boyd and Gray about ex-party Quirin, whether it's good law, I don't know. But in his concurring opinion, and I think the Hamdan case, Justice Scalia said of Quirin, Not this court's finest hour. So that sounds pretty strong to me. Then I really, carrying on from where Ambassador Gray and Ambassador Nolan left off, I want to point out what seems to me the real difference between what this administration has done, which I think is a greater difference than Ambassador Gray acknowledged and the Roosevelt example, which Jack Goldsmith did indeed emphasize, it isn't only that the present government executive branch has been slow, it has positively resisted the idea of consulting Congress. That's the point of the Goldsmith book. When Jack Goldsmith, as Assistant Attorney General, proposed to Vice President Cheney, they were the decisive factors, Vice President Cheney and his then-Counsel, now Chief of Staff, David Addington, that they go to Congress about warrantless wiretapping or go to Congress about other such issues, they said, no, we don't want to go to Congress. We don't want to indicate that they have any power in this at all. We want to do everything on our own. And that's the very attitude that Beth was, I think, implying, but perhaps by the politeness that did not actually come out and say, respect for the separation of powers, respect for the constitutional order. And the irony is, and this Goldsmith is certainly right about, had they asked Congress early on for the power to amend the Foreign Intelligence Surveillance Act and go for a warrantless wiretapping, Congress would have approved it in five minutes under the impulse of 9-11. If they had asked for other things, Congress would certainly have approved it in my judgment, and even today, far down the line, Congress is mostly saying yes to the request of the executive branch. And it's that attitude that seems to me so different. We want to safeguard our own power. We don't even want to ask their permission. I want to go back just a little bit to an interview I once did with a very distinguished fellow by the name of Boyden Gray, in which he described how he described how for decades, post-Nixon, nobody wanted to use the words executive privilege. It was like a dirty epithet because of Watergate. And now, there seems to be in the last few years, even the Bush administration really hesitated for a while. Now, it's Katie Bar the door, and I'm wondering what this panel thinks about the next president, and let's just say for the sake of argument that she has a rather large penchant for secrecy. Do we really think that she's going to go back to the notion of open government, big Freedom of Information Act, come get them. I'm not citing executive privilege because it might be difficult. Or do we think she's going to build on, should it be a sheet? In the past six or seven years of greater secrecy, greater condensation of executive power, and sort of a new era. What do you think, Boyden, before you leave here? Well, gosh, this goes back again to what I said earlier about the reporter's privilege and all of that. I just don't know how that's going to sift out. If I made executive privilege a dirty word, John Dean can tell you why that is. He's next. Over time, generations get older and generations come into place who weren't moroned, they were only 10 years old or whatever, and who don't know what executive privilege once was and now can deal with it again, and so it comes back to life. I don't know that the courts are going to give this administration an executive privilege and a greater birth, and I don't know that Fred Fielding's having any more success or doing anything differently than Beth did, or I did, trying to reach accommodation with Congress. Loud words, shouted in the press, back and forth. It's all part of a marvelous game of chicken. I know that he's doing something different because I testified several times as counsel to the president. Why don't you take over? His assertion of privilege is quite different from what we were doing, but since you were there for the last Supreme Court case... Which was a very narrow decision, as to really only said that Nixon had executive privilege vis-a-vis being required to turn over information to a grand jury. That's not very broad. It acknowledged the existence of the privilege on the basis of the separation of powers, but it was pretty narrow. He never did turn the documents over to the Congress. The Senate Watergate Committee nor the House Impeachment Committee didn't get anything, so he was ready to still play hardball. I think when Bowdoin was there, there was great... I marveled at the excuses they had to not turn over information without using the word executive privilege. It was really very creative. We've seen that again in the Bush too. Not to the same of late, we've certainly seen it. The bottom line has always been to me, yes, it is a political process, how much you can get the public even interested or educated, but we now have come down with the new Attorney General to the very clear position that as Attorney General he will not have his U.S. Attorney for the District of Columbia notwithstanding the statute to the contrary, prosecute any contempt of Congress case. If the Congress doesn't dust off some rather rusty machinery where they are able to hold their own trials and at least have sanctions within the terms of any given Congress, there may be no remedy for contempt of Congress because this administration has taken a very hard line that they will not take it to a grand jury. So that's where we are. There is no sanction for violation of executive privilege. In fact, they don't even honor subpoenas. They won't respond. They won't come before the Congress. It's just an in-your-face attitude that defies any respect for a co-equal branch, if you will. That position, the position that the Justice Department will not prosecute a contempt of Congress for an official who asserts executive privilege at the direction of the President is actually from a 1984 Office of Legal Counsel decision. So it is quite long-standing in the executive branch, the theory that an executive branch official who is directed by the President to assert a privilege should not be subject to criminal penalties for following the President's direction. That's OLC. No court has ever ruled on this. Absolutely not. OLC can overrule its decisions at any time. OLC is making political decisions. They have the best interest of the President in mind. So it's a very self-serving decision that OLC, I'm very familiar with the case and the decision, and it's a pretty thin bit of legal rationale. It is almost 25 years old, 23 years old. It doesn't have to be criminal, doesn't it? Couldn't the Congress simply say, we should have it. We have the power to seek a civil contempt, and that would have enormous PR value. I think only the Senate has civil contempt, and it's not available for executive branches. That's right, but there's nothing that says they can't change that. They could, yes, they could change that. All I'm saying is they've sat there and let it be either an atom bomb or a nothing. It doesn't have to be that. It could be a carefully aimed shotgun. Well, there's even Supreme Court dicta. Scalia has said every branch has within its power the ability to enforce its own rules and regulations. So I think it's pretty uniformly recognized, and they've just been out, you know, the Congress has just been outfoxed by the Bush 2 administration on this issue based on this prior incident where the head of EPA almost was ready to go to jail for honoring executive privilege at the request of the president. But in the end, that is separation of powers. I think talking about it as a branch decision is more apt than talking about it as a self-serving executive position for the U.S. Attorney General not to authorize a U.S. attorney to prosecute the White House for pursuing a policy that the Attorney General has advised the White House that it has the constitutional prerogative to pursue. Nixon needed you for Archibald Cox. That was his argument for firing Cox. Fightin' words. But I want to put the focus on Congress. And there is a reality that 2007 and November of 2007 is very late in a second-term presidency. And for whatever political considerations are in the mix, the branch decision by the Congress is not to pursue the additional legislation or an aggressive use of the existing tools. And frankly, that is the way separation of powers is supposed to work. I mean, it goes back to Madison and the clash of ambition against ambition. But Congress has made this choice. I do think it's very interesting as we're talking about this, how little Supreme Court precedents there are for many of these incredibly important executive congressional battles that most of this has not been decided and is not going to be decided by the Supreme Court. And the role of the Office of Legal Counsel in the Department of Justice has, because of that, very significant importance and enhanced importance in this area of presidential power as compared to any other area in which it might apply. If I can just, because I'm going to have to leave and so I want to say something to give Mbeth a chance to respond back. One of the, probably for me to jump in as Mbeth is right, most of these things get worked out and it's a game of chicken. The Congress could vote contempt and then you have the political fall out of that regardless of whether it's actually implemented in some way that Congress can or cannot do by changing its own internal rules. But it's a game of chicken and you really don't want to get to the courts because you don't know how much you're actually going to lose if the courts actually get their hands on it. And I think, we always regret it, that because we use this, I don't know whether John, you were involved with Walsh, we were able to claim, we did, without ever having it adjudicated, attorney-client privilege, which in some ways has a deeper, longer, more historical, deeper, deeper historical roots. Even against advice from the Office of Legal Counsel that somebody who works in the government can get attorney-client privilege. But we didn't, we still used it and used it effectively. We lost that case. But, yes, you answer. We never lost that case. Beth took it, no, not Beth, but they took it all the way and lost it. So now that's a little gimmick that's no longer so, just to go back to your original question, one of your original questions, one of the reasons why you hear more about executive privilege today is not about privilege anymore. Incidentally, Nixon claimed both executive privilege and attorney-client privilege on my testimony. I reminded him that attorney-client privilege doesn't apply to criminal activities. He said, oh. And executive privilege, he decided to waive it. You know, I remember, so you don't miss your train. Go. Thank you. Some of the law clerks who worked for Justice Powell at the time of the Watergate case and the Nixon tapes case going to the Supreme Court said they knew that President Nixon was going to lose that case when Justice Powell stopped referring to him as President Nixon and simply referred to him as Nixon. And having known Justice Powell, I think that was an accurate assessment. But I wonder how many of those cases, the outcome of those cases, turn to a significant degree on the character of the President involved. I told that story for a reason. And that, so executive, he loses an executive privilege case that some other President might succeed in that the same thing happened to President Clinton who was involved in his Monica Lewinsky problem and therefore he loses a rather important power that had been used by previous Presidents privilege and that was attorney-client privilege. In many regards, it's gone now for the ages, as they say. And so, you know, one wonders whether the character of the individual President doesn't determine for other Presidents what happens to them. Nina? Yeah. I think that's a very good question. In my mind, it comes, I'd like to talk a bit not about if what you meant was determines judicial decisions, but has an impact on the whole situation. I've always thought that the whole course of the Pentagon Papers case going back to the Times decision to publish after having the documents for a month turned significantly on the character of Richard Nixon and his relationship with the press. The New York Times had historically had very close relations, and its leaders, Washington correspondents like James Reston and so on, had a very close relationship, with the President, the Secretary of State, and all those people. They were on the phone, not with the President, but the Secretary of State. Secretary of State came to dinner, all that sort of thing. And when something secret came up, their actual deepest instinct was to go to the White House and say, it's a good idea that we published this. Is it okay if we publish it? What harm will it do? Not only did the Times not do that with the Pentagon Papers documents, it held them in a room at the New York Hilton Hotel under armed guard for a month, making sure that nobody in the administration would hear about it. It was the exact opposite of it. And that, I think, of course it was partly due to the nature of the Vietnam War, which had taught us that we couldn't trust the government to tell the truth. But it also had something to do with the bad state of relations and lack of respect for Nixon as a truth teller in the White House. And I don't know how much of that carried over into the judicial process. Maybe not. But I just feel certain and without being able to articulate it that if somebody else had been president when this happened, the case would not have developed as it did develop. John Barrett, you know, I think I wasn't even 10 years old when Truman was president. So I don't know how he was viewed, but my sense is that he wasn't viewed as a crook or as a liar, and still he lost the still seizure case from his friends on the court. Well, it's this issue of presidential popularity or perceived presidential caliber is in the mix in judicial decision making. Actually, in Spring of 1952, when the still seizure case came to the court, Harry Truman was very damaged goods. His popularity was in the 20s. He had announced that he was not seeking an additional term in office. And the Korean War, which had been raging for two years, was deeply unpopular. And that is the context of the still seizure case. The court in the end treats it as domestic property seizure, but the Truman security argument was that he needed to keep the mills running to produce the steel to arm the forces that were fighting under UN auspices in Korea. And it is very much in the mix for the Supreme Court dealing with that matter on an expedited basis that Harry Truman and his administration plagued with scandals below his level. I think there's an important distinction to be drawn between the caliber and integrity of President Truman and some of the things that surrounded him. But that is in the mix. Also in the mix is the way his Department of Justice, which was plagued by mediocrity, argued the case. An assistant attorney general went into the district court to defend the still seizure when the steel companies went in to seek an injunction and offered this description of presidential power. He said, the president is the common law descendant of the original sovereign, George III. And the power of the presidency is the full sovereign power of George III, reduced only by the explicitly enumerated limits in the U.S. Constitution. The same argument that's being made today. Well, Nixon made that argument, of course. George III in 1952, you children are being bad now that Boyd and Gay is gone. It's a laughably excessive argument. And when made by someone in a context of failure and perceived lack of candor to a country that has made up its mind about the president's performance and maybe unfairly, history revisits these questions and reassesses. Harry Truman is a powerful, powerful example. But in that moment in May of June of 1952, that's in the mix. And one of the six votes against Truman concurring only in the result is Justice Tom C. Clark, a Truman appointee, Truman's former attorney general. He's joined by Justice Harold Burton, another Truman appointee, his seatmate in the U.S. Senate. Burton thought it was an easy case. Executive excess, no problem. Clark thought it was a hard case. And in the end, I think it took him a while to sort of step back from his prior role and his reflexive legal support for Harry Truman. He concurred in the result, and Justice Jackson commented privately after the decision came down. Tom, congratulations on deciding to be a judge. With Senator Sarbanes here, I want to return to the question of the authorizing of military force, not just in the current circumstance, but as somebody pointed out to me, the last time we actually had a formal declaration of war was World War II. We haven't had one. We haven't had a formal declaration of war since then, but we've not had a formal declaration of war. Senator Sarbanes, is this a product of the smaller wars that we fight now and the instantaneous decisions that have to be made? Is it not conceivable that we would ever have a formal declaration of war again? And how are we to just reconcile that with the Constitution? Well, I think the obtaining of the use of force deals with a lot of the constitutional question on the executive then going ahead. And President Bush did get authorization, not with my vote, but he did get authorization to use force with respect to Iraq. To pick up on your previous question, I do not think that the members of Congress thought when those who voted for the authorization that they were at the same time repealing the Foreign Intelligence Surveillance Act or pulling out of the Geneva Convention with respect to the use of torture. And the effort to extend that authorization to cover that and to provide a cloak of legitimacy, I completely reject. It really goes back in part to what Tony Lewis said about the attitude with which this reach of executive power is asserted, which has a lot to do, I think, with the reaction you get from the other branches of the government. I was struck yesterday when Justice O'Connor spoke about the Merriman case, where Lincoln took that extraordinary step. But as I understood her comment about it, Lincoln wasn't asserting, well, this is the reach of executive power and I can do this anytime I want, anywhere I want, and so forth and so on. He hedged it in. He went to Congress as soon as Congress came back to get the congressional sanction for it. He limited what he was doing in a very narrow way. And that's in sharp contrast, in my view, with the assertions that are being made now about the reach of executive power. Now, the question is, why doesn't the Congress try to check that more? And that's, I think, a very legitimate question. I have to tell you, and I want to thank you for the chance to come up here. As a recent senator, now a former senator, this helps you to accomplish the transition. At least get some chairs. Yeah, well, not all former senators are Rhodes Scholars, you know. I think that these assertions of the reach of executive power, part of the problem is the Congress, fewer people in the Congress regard themselves first and foremost as a member of an independent branch of the government, who have a major responsibility to carry out the checks and balances of the Constitution. And they make more of an identification as being a partisan, a political partisan, either aligned with or against the president, who becomes then the... I can't help being a radio reporter. All right, the party, oh, that's much better. Thank you very much, Nina. The party, who's the party leader. And so the tendency now is to, you know, if you're of the same party, you support the president. If you're not of the same party, you know, you oppose the president. It's interesting about Roosevelt, the efforts he made leading up to World War II to try to consult the Congress, to draw the Congress in to get some congressional approval or sanction for what he wanted to do, or at least some assurances that they would not resist him strongly if he went ahead and did some of these things. But the extent of consultation and the interaction that was taking place between the executive and the legislative branches is, I think, very interesting to read about. And you really don't have that now. We've lost a lot of that. And I think one reason we've lost it is this breakdown in terms of now the partisan identification that is made. And secondly, certainly with this administration, an assertion about the reach of executive power and the attitude, well, we don't really have to consult with you. Although I do give the Bush administration credit for coming to the Congress to get an authorization with respect to Iraq. I mean, they came, they got it, they got it by a very quite substantial vote. And that, I think, I mean, I think it was a bad decision and I think it looks even worse in retrospect, but I thought at the time it was not a wise decision. It wasn't a good judgment. But I don't think Bush has, in effect, in that sense violated the Constitution. It's a different question on the assertions they're making about surveillance and about torture and about some of these other measures that they, then they make these bold assertions about the reach of executive power. Boyd and Gray basically said that Congress is not to be trusted. It leaks like a sieve. You can't really consult Congress and you can't trust that things will remain secret. I'm not sure if that's true or not. I think on some things clearly Congress is a sieve. I've personally never been the beneficiary of a national security leak, much as I'd like to be, but it seems to be, it certainly has been the experience of some presidents, maybe all recent presidents, that they have on some occasions brief hill leaders about something they thought was terribly important in the national security area where there was a compromise of that information. I wouldn't go on the Intelligence Committee for the following reasons. The leadership would ask me from time to time whether I wanted to go on the Intelligence Committee. Of course, if you go on the Intelligence Committee, then you're bound not to talk about anything you heard at the sessions of the Intelligence Committee. I talked to people who served on the Intelligence Committee and they said, well, you know, they'd go in in the Intelligence Committee and either they would be told something they had already read a day or two before in either the New York Times or the Washington Post or some other newspaper for that matter or they would read it a few days later. And I thought to myself, well, how will you ever separate out the two? If you go on the Intelligence Committee, you're just binding yourself never to talk about all these issues which everyone else is talking about on the basis of the information which is appearing in the newspapers. Actually, I think that Congress basically is, it's not the Congress because the Congress sets up procedures. Beth made a very important point earlier which was talking about setting up the right processes by which these decisions are reached. And that's terribly important because it enhances the chances that you will make wise decisions and it gives you greater assurance that you're not going to make some foolish decision. So it's an important point to bear in mind but the Congress sets up processes. I mean, you know, consultation with a very small group is considered as consultation with the Congress and it gives the executive a sort of a mandate to proceed ahead. Generally speaking, I think that's been pretty well honored. Now, occasionally there's a breach but better to pay the price of the breach than to go down the path of asserting and conceding to a sort of an unlimited reach of executive power. You have to consider what is better for the society. Do you guys have questions for each other before I continue? I mean, do you, any of you have questions you wish to ask each other? Are we going to have a chance for any later comment? You can say whatever you want, Tony. I could never shut you out. Tell me what you want me to ask. Well, I just had a general observation that we haven't approached and that is the distinctive character and danger for the matters we're talking about of the war on terror. It's different from, for example, World War II with the Supreme Court, with the government as was pointed out, John Barrett deciding, or was it John or somebody else deciding to end the Japanese program the day before the Supreme Court decided the Endo case. But the war was coming to an end. We all knew that it was slowly, still with much pain ahead, was coming toward an end. Now, nobody knows when the war on terror is going to end. It's not going to end in my lifetime and I doubt if it will end in anybody's lifetime in this room. It's a very different premium on respect for civil liberties and respect for the Constitution because after all the other episodes, including the Japanese one, in which we violated civil liberties during a war, when the war was over, we generally apologized for the mistakes and we eventually apologized to the Japanese-Americans and paid them modest compensation. But when is that going to happen in the war on terror? What's going to be done to Hamdi and Padilla? Think of this, ladies and gentlemen. It really is something that disturbs me profoundly. The Bush administration has asserted, it did assert in the past tense, it no longer does, I think, that it had the power unilaterally, without any other support in law or congressional action, to label any American citizen, that is anybody, any of us, as enemy combatants, take us into custody, hold us in solitary confinement forever without counsel and it asserted at first that no court could examine that detention. No court could examine that detention. You'd just be put away somewhere and you couldn't go, you had no lawyer and if somebody, your father happened to hear about it and filed a habeas corpus petition on your behalf, the court would have to dismiss it without consideration. Now, that's an astonishing assertion in the American context, ladies and gentlemen and it all stemmed from the war on terror which is an endless war. So I think that assertions of unilateral executive power in the war on terror have a unique dangerousness that we ought to care about. Well, I must say that I've always been sort of puzzled that the court, the Supreme Court, which is after all a much more conservative court than at any time in my lifetime, was willing to examine these questions, at least some of them, relatively early on. I mean, the history of civil liberties in wartime is that the court doesn't get involved. Sometimes it'll say to the executive branch, you were wrong when you did that, but that's over. They wait till after the war is over. But really pretty early on, this Supreme Court, by an eight to one vote in Humdy, was shoving back pretty hard. And that I find really remarkable in terms of the historical panoply that we can look at in the American experience. That's an encouraging point, Nina. I just want to say that I think an unspoken factor in that willingness of the court to intervene when it did is the very thing I've just mentioned, that the judges were aware that this was a war without end and that there wasn't going to be the opportunity to come along after four years and say there was a mistake in the past. And that the authority being asserted by the executive branch was not a particular and narrow program, but one that had such far-reaching effect. And I think that combination of endless in time and far-reaching really makes it different, Nina, from any other program the Supreme Court had been faced with. Well, let me just footnote that. It strikes me that the courts may well be assisting the executive in this regard because there's certainly a mixture right now on decisions, on questions of whether some of these matters are state secrets. Whenever we look behind the state secrets document, it often looks more like a fraud than it does like a legitimate excuse right down to the leading case that the Supreme Court did decide. What was that, Reynolds? And we have a mixed bag right now in the circuits where some are honoring state secrets, others are not, there is a, this is going to have to, I suspect, be litigated sooner or later by the Supreme Court. I'd like to hear how John thinks this is going to be resolved. Well, I was struck by Senator Sarbanes' comment that most or many members of Congress do not think of themselves as part of a co-equal branch with its own responsibility for the separation of powers. I think that's sad, it's understandable. But by contrast, I do think what we have seen in the post-911 adjudications is a continuing consciousness on the part of the courts that they are a distinct and independent branch. And I think that in part that connects to the appointments process and is affected by who comes to serve on the court, it also goes to longevity and historical perspective. I think it matters deeply that Justice Stevens has served for more than 30 years and that he's a World War II vet and that he's been around this track or tracks like these in many different contexts from his time as a law clerk in the 1940s to his service on the court since 1975. I'm concerned, as a general matter, and I guess specifically on the state secrets question that John raised is that a court that doesn't have this kind of branch independence mindset is going to be susceptible to that kind of argument. The Reynolds precedent is there and venerable if controversial. Only a few justices dissented from that claim. Jackson, one of them, but the claim prevailed in the 1950s. And it's about an area of enumerated or implicit executive prerogative as we've understood national security and classification and responsibility. And I would hope that people aren't on the court who are overly deferential to that as another branch. You have to go back, people have to go back through American history and understand how this was structured. People will come to you and say, how many presidents did you serve under? I'll think of that question. How many? You say, you've been in the Senate a long time. How many presidents did you serve under? Of course, Bob Byrd has been preaching. He gives a speech every year to the incoming new members of the Congress that he's never served under any presence. He served with presidents. And it became so ingrained in me now that a woman came up to me a few months ago. She said, how many presidents did you serve under? And instinctively, without even thinking about it, I said, none. I haven't served under any. I've served with. But there's a failure. Understand how this system is going to work. And if you don't understand it and the checks and balances aren't working and then a time of crisis comes that can be invoked. I'm thinking now particularly of the executive which can, a lot of your basic freedoms and liberties may be in question. John, you want to? Yeah. Listening to Michael Dorff's numbers as to the makeup of those who come from the executive branch doesn't bode well for how these people on the Supreme Court may ultimately rule given their deference and roots in the executive branch on the issue of state secrets. And if state secrets is supported it's just going to be one other block for Americans ever knowing and understanding what we're doing and giving anybody a remedy for when we make mistakes. I want to explain something here for anybody who doesn't know what the state secrets privilege was and what the cases were discussing. It was a case brought by the widows of some airmen who had been killed in a test pilot run and they wanted to know what had caused this accident that had killed their husbands and the government, this is I think in the 1950s, invoked this so-called state secrets privilege saying it could basically decide what it was going to tell people and this information here it asserted to the courts and to the Supreme Court would compromise national security in this case that there were secrets about the weaponry involved that would, if found out by the Russians or the Soviets at the time would compromise national security and so the case was lost for the widows and I don't know how many decades later they finally declassified this report that the widows- One of the daughters found the information on the internet. And there was nothing in it about any weapons systems or any anything. It was totally nothing but it has remained the precedent and all that the government has to do is say that there's a state secret and goodbye and very, just last week the Second Circuit Court of Appeals posted on its website a decision in the case of an Egyptian who had been detained after 9-11, erroneously and he sued the FBI agents who detained him on a personal basis and the Second Circuit allowed the case to go forward and posted its decision on its website and then pulled it down and Howard Basham from How Appealing which is a blog had seen it. So he had the whole original opinion and the original opinion and he posted it. So I've got it and so can anybody else and you can compare it with the one that the Second Circuit then put up when I assume after the administration objected and wanted part of it sealed and the part that's missing is the part that summarizes the tactics used by the FBI in questioning this man. I can't see how it's a threat to national security but somebody thinks it is and the courts will not look at these issues. They will not look behind the claim of state secrets once it's in vote. So the court makes a blind decision the way it now stands. Just on the word. You can understand to some extent why they might do that too. I mean they don't know they don't want to be there saying okay you can put this up and it's the basis for the next terrorist attack. They're not crazy. The question is what leads people in the executive branch to make such outrageous claims in the first place in exercising their authority or their power and in the case you just talked about when it all came out you look at that and you say well on what basis was that being done? What reasonable case was there for doing that? And of course you need to put yourself in the position of the people that were seeking the information and being denied it. Just like Tony Lewis said you have to think of these people that are being this assertion that they can pick anyone up declare you an enemy combatant hold you in communicado for an indefinite length of time. When did America stand for that? When did that become what we stand for? And why do we need a court to tell people holding responsible positions in the executive branch that you're not supposed to engage in this kind of conduct? I mean there has to be some self-restrain as well on the part of people who hold authority. Let me just for one moment though play the role of the worship administration unaccustomed as I am to doing that and note that a good deal of these cases like Hamdi I don't know what would have happened in the ensuing years if there hadn't been a Hamdi decision but most of that conduct Padilla Hamdi that particular the detention of American citizens occurred in the immediate aftermath of 9-11 when I think it's fair to say that everybody in the federal government was stark, staring, terrified about what was next and what would have been the consequence if it turned out that Hamdi or that Padilla did have a dirty bomb and was getting it somehow over here to put into place into Chicago? There would have been 9-11 hearings squared about the failure to do something about it. How long do you think would have been kept in that status? Don't push me too far in the role of the Bush administration advocate. Nina, the other thing is in taking the position of the Bush administration they didn't take it just in the immediate aftermath this whole motif of secrecy that they've imposed it starts before 9-11 and it accelerates with 9-11 and it has continued to this day and it's not just in using things like state secrets it is across the board and it's a part of a belief they've had that when they returned to power in 2001 that they found a weakened presidency because of Vietnam and Watergate that is a totally fallacious argument it is not true by the end of the Reagan administration the presidency had powers greater than Richard Nixon's fondest dreams so they have gone way beyond and they've just used 9-11 as an exercise to gain and augment presidential powers to bring us totally out of balance and forget the separation of powers I'm going to end this with a much smaller question but it seems the suitable question for this audience and that is about the Presidential Records Act which the Presidential Records Act initially basically made all presidential records subject to classification concerns available after 12 years and when President Bush came into office he issued an executive order that basically allowed any living president to extend that time period and then to give himself, President Bush the sitting president an unlimited time then to review upon that the result is that the Presidential Records Act is a mere shadow of its former self let's put it that way do we need a new act? could we get a new act? looking at the congress today do you think the congress would be willing to put a Presidential Records Act in place with more teeth that was less subject to interpretation by executive order? well presumably anything they tried to do would be vetoed so the question you're really asking if you try to do that for the next president as long as he can hold on to one third of one house only he can negate any corrective action that the congress may try to take and that needs to be kept in mind to try to evaluate evaluate congressional actions but if we look forward to the next president forget this president for the moment difficult as that may be for you to do Senator Sarman can this be done or is this just a casualty of our time? it can be repealed I followed the 78 Act since Bush gutted it it is now still in a very abbreviated form pending in a federal district court in the District of Columbia in a summary judgment motion which has never been ruled on because the White House did provide 60 some documents from the Reagan administration that really prompted the lawsuit by a group of historians but if you look at the act itself it not only grants the power of executive privilege to the president after he leaves it also grants it to the vice president in fact it grants it to the family of a former president it grants it to everybody except Barney it has the ability to invoke executive privilege so this can be repealed and will probably be repealed is one of those things that happened during the transition when they're cranking out the new executive orders you can expect this one to disappear the problem is this president is going to walk out and there are going to be no papers left I understand that there is an occasional truck that goes in and out of the naval reserve or naval observatory in Washington where the vice president's residence is and it literally has a sign on its face that it's a document destruction truck this is how in your face he is about getting rid of whatever is there and Cheney has made it very clear he believes the act is unconstitutional therefore he has the right not to to apply it Beth made an interesting argument he's not a member of the executive branch remember Beth made an interesting statement about occasionally when there is an unconstitutional law that there are occasions when a president may not want to apply it the classic case to me has always been the way Clinton handled when he when his veto was overridden on the amendment to dismiss everybody from the armed services who was HIV positive and he said I will not enforce it and what he was able to do in taking that strong position because he believed it was unconstitutional is he was able to get the congress to change it and that seems to be the intelligent way when you get an act like this but in this case you can just have a president change it any last thoughts before I close this down Senator Sarbanes well first of all I want to thank Nina who's done a terrific job moderating all day long now you see why he was elected like 50 times and also to commend the presidential libraries and particularly this one who has been the host library and the archives and the Franklin and Eleanor Roosevelt institute for putting on this terrific conference I was sitting there and I was thinking to myself how can we get members of congress to come and sit through one of these sessions you know hold a fundraiser yeah and I'd be remiss if I didn't particularly thank Bill Vanda who for the extraordinary leadership he's provided to the institute since well he founded it and then provided such has provided such extraordinary leadership and we're indebted to him and I just want to close on a sort of a light personal note I have enormous respect and admiration for Franklin Roosevelt I think he was one of our three great presidents Lincoln and Washington being the other two and I want to tell you this story because Norm Dorson told the story about saying to the daughters of the American Revolution welcome fellow immigrants and my parents came to this country as immigrants immigrants from Greece and I grew up in a household that had enormous reverence for president Roosevelt Joseph Alsop has written a book about president Roosevelt and he said the thing that Franklin Roosevelt did for the United States he included in large groups of people who previously felt they were excluded out of American society and we certainly felt that in my family I had a summer job when I was in college I was selling fuller brushes I don't know how many of you remember the fuller brush salesman and you know you would knock on people's doors nowadays you don't do it they think it's a potential robber or something they won't open the door and people would open the door and you try to get yourself invited in so you could show your wares you carried a little kit with you that had some of that and you had a number of different items that you could give as free samples and you'd usually you know at the end even if you hadn't made a sale you'd leave one of these free samples so I knocked on this door this housewife came to the door one of the reasons you don't have them anymore there are no housewives anymore and so the lady asked me and I sat down we were in a very very modest home and they had a picture of Franklin Roosevelt up on the wall and we started talking we went through and then I finished and I want you to know I ended up giving that lady every one of my free samples so thank you Roosevelt Library thank you Roosevelt Institute again I want to thank all of the presidential libraries all of their staff all of the wonderful panelists everybody who worked so hard to make this two day conference a success and it as you can tell it took an enormous amount of work by people who are not sitting up here to get all the nice words of praise so thank you to everybody and I would like to thank Nina Totenberg can we have a round of applause for what she has done for us today and if you haven't purchased your Nina Totenberg which will benefit the NPR station nearest you do so in our store we are and I too want to echo all of those thanks to all of the people who have made this conference possible but I'd like to just take a moment before we have our closing session to say some special thanks to the staff members who have worked so hard on this the planning team here at the Roosevelt Library was headed by Lynn Bassanese our deputy director who has been working on this project since February of 2006 and has been living with it day and night and I just want like a round of applause for Lynn Bassanese Bob Clark who is our supervisory archivist has been guiding our thinking processes and our legal acumen every step of the way and assisted by David Wolner of the Franklin Eleanor Roosevelt Institute thank you to our two minds Cliff Lobby is our public affairs specialist and he has done the design of our materials our logistical arrangements every aspect of this has been part of Cliff's very very broad portfolio and I'd also like to thank Cliff for everything that he has done for this project we also had a full core of volunteers and staff in here who have been working very very hard these past few weeks and especially the past few days I thank them and I thank the Roosevelt Institute staff and Chris Brice their president for his hard work on behalf of this conference Bill Boxer our volunteer photographer thank you Bill and Philippa Ewing who has handled our press work she has done a fantastic job and I know you're going to be hearing all about this conference for days and weeks to come because she's managed to get some national placement on it so thank you all and at this point again I'd like to thank our panelists the Nina we're going to invite Bill Vanden Heuval to come up and also have John Barrett stay there and do a brief wrap up of the session we were hoping the president former president Bill Clinton would be with us but unfortunately that's just not possible this close to the election so Bill stay where you are it's going to be very short this wrap up thank you Cynthia thank you Alan Weinstein thank you Sharon Fawcett thank the National Archives all of the presidential libraries who've made this extraordinary conference possible I want to thank you and Chris Brice the president of the Roosevelt Institute Dick Franks was here today Anna Allen Roosevelt our co-chair thank them and all of the directors who came today I was especially pleased that David Ginsberg was with us for this conference he was with us at the beginning when we founded this he was with us at the beginning of the Roosevelt administration so to have David here is a great honor and very grateful for that and his participation is important I want to thank of course those who have conducted this extraordinary symposium to Alan Brinkley and to Alan Weinstein and to Nina Totenberg for moderating these and for all of the participants the presence of Sandra Day O'Connor made a great difference to have her here for us to have the personal opportunity to talk to her and to exchange points of view I was especially pleased today at lunch when she was still here since she was appointed by President Reagan to tell her this story of when I went to see President Reagan with Claude Pepper to discuss the possibility of financing the Roosevelt Memorial in Washington DC and Ronald Reagan said I voted four times for Franklin Roosevelt and he was the greatest president of this sanctuary so I was glad to give that little wisdom to Justice O'Connor so that she could carry that back to Arizona with her too what has been discussed here today of course is the ongoing dialogue of a democracy we have inspected two of the independent branches of our government Paul Sarbanes has made a very important suggestion this same conference the presidency and the congress would be a very important conference to have as well and I think the way we're ending up as the questions have been focused is extraordinary too because as I listen to this I thought of how very important the question is what is war in the context of our constitution in 2002 Robert Byrd came here to receive one of the four freedom awards he gave one of his great speeches where he had called for the invocation of the constitution article one section 8 where he says only the congress can declare war as president to declare war and we've now gotten into the habit with Korea, with Vietnam with Iraq twice to allow the congress to make to vote on a resolution whether it was the Tonkin Bay Resolution or the Iraq Resolution that allows the use of force but then is used to declare and operate as though a full war has been declared Franklin Roosevelt was very very careful about his constitutional obligations when Winston Churchill at the Atlantic Charter Conference said the United States must come into this war he reminded him that it had to come in through a constitutional process I am a bit really when I hear people say that this crisis of terrorism is the greatest crisis since the Civil War which the Attorney General designate has just said in his testimony it appalls me to think that what we went through in World War II what Roosevelt had to confront the Nazis controlling all of Europe with the strongest military force the world had ever seen with a scientific community where it was totally capable of producing the nuclear weapon itself and whoever was going to get there first was going to win that war with the United States 17th in the world in military power in 1941 behind Portugal the Congress of the United States by one vote extending the Selective Service Act in August of 1941 just months before Pearl Harbor President Roosevelt confronted a crisis and even that terrible crisis where we lost half of our fleet in Pearl Harbor and 3,000 dead he did not react to it with fear he went before the Congress confident as he was then as he was in 1933 as is inaugural to say we have nothing to fear because we are America and we know our strength and our power and our possibility to call this war in a situation where if the president had read the intelligence briefings on August 6, 2001 that warned him that Obama was going to attack our airports that the whole thing could have been avoided if a simple regulation of the FAA regarding pilot security could have been enforced and the doubt to have spent more than a trillion dollars to take our nation where we are abandoning our constitutional obligations is appalling to me and so you know what I'm going to do I'm going to put on this button reelect Roosevelt because the time has come and thank you for being here today