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Chat transcript with Charlie Savage

Globe reporter Charlie Savage, who won the Pulitzer Prize in 2006 for his work on President Bush's signing statements, chatted with Boston.com readers about his new book "Takeover," which chronicles the Bush administration's controversial legal tactics.

Charlie Savage: This is Charlie Savage, the national legal affairs correspondent for The Boston Globe. I am currently on leave to travel around the country talking about my new book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. This book was inspired by my work last year on presidential signing statements and efforts to impose greater White House control over Justice Department lawyers, but it goes far beyond those topics. Its aim is to be a comprehensive accounting of the Bush-Cheney administration’s quiet but systematic effort to expand presidential power, an extraordinary project that, I believe, has been the White House’s most successfully implemented policy.

Charlie Savage: In the book, I trace the origins of this agenda back to Vice President Cheney’s experiences as White House chief of staff to President Ford after the fall of Nixon’s "imperial presidency." Following Watergate and Vietnam, Congress awoke from its Cold War slumber and began imposing controls on the exercise of presidential power to prevent future abuses and to restore the constitutional equilibrium between the branches of government as the Founders envisioned. To Cheney, this was an outrage that would weaken the commander-in-chief, and hence the country. He spent the next 30 years – as a member of Congress, as secretary of defense, and now as vice president – working to restore presidential power to the level it had briefly reached under Nixon. His goal was not just to gain more power for Bush and himself, but to reshape American democracy by permanently tilting the balance of power toward the White House for all future presidents as well – Democrats as well as Republicans.

Charlie Savage: This agenda of expanding presidential power was laid out at the very first meeting of the White House legal team, my book reports – long before 9/11. But the war on terrorism would provide many new opportunities to push the agenda forward, putting it into overdrive. I wrote the book in part to show how much of what the administration has done – rising secrecy including around Cheney’s energy task force papers, the warrantless surveillance program, military commissions, harsh interrogations, the explosive growth of signing statements, the selection of three presidential lawyers to fill Supreme Court vacancies, the withdrawal from the ABM treaty and the sidestepping of the Geneva Conventions without Senate consultation, the numerous fights over "politicizing" the executive branch bureaucracy from Justice Department lawyers to regulatory agencies, the creation of a politically controlled alternative intelligence analysis unit in the Pentagon to undermine CIA civil servants, and much more – are all explained by this agenda. They are connected by the root of a desire not just to solve short-term problems, but to do so via actions and tactics that established precedents that would leave the presidency stronger than it was before, even at the cost of extra short-term difficulties.

Charlie Savage: You can find more about the book at CharlieSavage.com. Thanks for tuning in, and let’s go to questions….

frederic: Charlie, haven't read the book yet but am excited too. Is it an extension of your work in signing statements, or do you have new material? Is there any "breaking news" in it?

Charlie Savage: There is one chapter about signing statements that draws on what I wrote last year, although it goes much deeper into the history of the device during the Reagan years. The other 12 chapters are about many other aspects and tactics of the administration's efforts to expand presidential power. There is a lot of new material in it that I uncovered during interviews and extensive archival research.

martha6117: Hi Charlie, do you have any idea how signing statements are actually being used by the Bush administration? Does the White House consider this Bush commentary the new "law"?

Charlie Savage: The Government Accountability Office this year did a study of what had happened to a small sampling of bill-sections that Bush challenged in his signing statements attached to appropriations bills that Congress passed in 2005. It found that of 16 section, the executive branch went on to disobey six of them while enforcing the other 10 as written. The GAO did not look at what happened to any of the most interesting signing statements, such as those involving torture and the Patriot Act, as they involved classified matters.

donald: I know that Chris Dodd opposes the administration's efforts to bolster our security by limiting our liberties. But what other presidential candidates have spoken out staunchly against this?

Charlie Savage: There has so far been very little discussion by presidential candidates of either party about what limits on executive power, if any, they would recognize and obey if voters put them into the White House.

Charlie Savage: I should emphasize here that while the war on terrorism has played a major role in the Bush administration's project to expand presidential power, the effort itself goes well beyond national security. This was an agenda that was in place long before 9/11, and it reaches into myriad aspects of how the government operates.

martha6117: What is your feeling on the view from inside the White House of the Bush administration's power grab tactics? Are employees all for it, or do some people think it's a misuse of power?

Charlie Savage: One of the most interesting aspects of this effort, and one that I document at length in the book, has been the resistance to some of the more extreme views of executive power that officials inside the executive branch have mounted.

Charlie Savage: Most famously, we now know that most of the top leadership of the Justice Department, including Attorney General John Ashcroft (who was fully on board for other aspects), threatened to resign in March 2004 when the White House authorized an extension of the warrantless surveillance program even though Jack Goldsmith at the Office of Legal Counsel had concluded that the program was illegal. But there are other examples as well. The two-star Judge Advocates General at the Pentagon, along with then-SecState Colin Powell and his staff and Alberto Mora at the Navy all resisted efforts to undermine and bypass the Geneva Conventions, for example. There is more like this in the book.

pandachew: Charlie, how does the Bush administration's grab for executive power compare to that of other wartime presidents? Didn't Lincoln suspend habeus? Roosevelt and the Japanese internment camps?

Charlie Savage: Presidential power always expands during wartime, and both the Civil War and World War II are good examples. But, as Jack Goldsmith has argued, there were key differences. Lincoln and FDR both bent over backwards to work with and consult with Congress. Lincoln, for example, took a series of steps after the firing upon Fort Sumter that were not authorized by law -- not just suspending habeas, but spending money not authorized by Congress, blockading Southern ports, etc. But Congress was not in session then. When it returned, on July 4, 1861, Lincoln immediately wrote lawmakers a letter about what he had done. Unlike the Bush legal team, he did not claim that he had inherent (unwritten) powers as commander in chief to do what he had done. Instead, he acknowledged that his acts were outside the constitutional framework and said they had been necessary. Forgiving the trespass in light of the circumstances, Congress passed a statute retroactively making legal what Lincoln had done. This is a very different approach. (And that was also a war that was going to end, one way or another, within a couple years, after which normalcy would return.)

Matty: Legally, are non-citizens entitled to the same civil liberties our Constitution grants citizens? Or are their rights different and from other sources (Geneva Convention, etc.)?

Charlie Savage: Generally, non-citizens who are legally on U.S. soil have the same rights (other than voting) as citizens. Non-citizens on foreign soil do not have any rights from the Constitution, but might be protected by other sources of law, such as treaties the United States Senate has ratified.

pandachew: Charlie, heard on you Fresh Air the other night. I was stunned by the power you contend the office of legal counsel has. How can it be possible that, by advising the president on any law, they caessentiallyly absolve him from prosecution or wrongdoing? How in God's name did this system get set up?

Charlie Savage: Because in national security matters most of what the government does is never going to get into court (because it's a secret and because no one has standing to file a lawsuit over it), this means that the OLC acts as a kind of internal Supreme Court for the executive branch. By statute, the Office of Legal Counsel's opinions about the law represent binding interpretations that the entire executive branch must follow, unless the Attorney General or the President overrules them (which almost never happens). This role used to be played by the Attorney General, but over time it was delegated to the brain-trust at OLC. OLC lawyers, by advising the president and the rest of the executive branch about whether a proposed action would be legal, enjoy a tremendously powerful position. If something would be illegal, they have a duty to tell the president "no." But if they say something is legally permitted, then any executive branch official who takes an action based on that opinion is essentially immune from prosecution. The Justice Department is never going to prosecute someone for taking an action based on its own official interpretation of the law, even if it came from a previous administration. By stacking OLC with legal scholars who had adopted a very aggressive view of a president's power to bypass laws and treaties in their prior scholarship, the Bush administration arguably gamed the system.

tango: Charlie, poor example comparing the civil war measures taken by Lincoln and what Bush faces today.

Charlie Savage: The Civil War was the greatest threat to national survival that the USA has ever faced. In an 1866 ruling, the Supreme Court made clear that the actions Lincoln took early in the war should be viewed as a singular exception in American history, not as a new general rule about presidential power. However, 20th century presidents have often cited Lincoln's precedents as justification for their own aggressive exertions of power (often ignoring the fact that Lincoln went to Congress as soon as it was back in session and asked for a statute making what he had done legal). In a famous 1977 interview with David Frost, Richard Nixon cited Lincoln when he explained that "when the president does it, that means it is not illegal" -- that is, that the president has the power to bypass laws in order to protect national security.

Charlie Savage: The importance of precedent is difficult to overstate. During World War II, Supreme Court Justice Robert Jackson wrote, in his dissent to the decision upholding FDR's internment of Japanese Americans on the West Coast, that any new claim of executive power, once validated into precedent, "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes."

Charlie Savage: My reporting shows that this is precisely the insight the Bush-Cheney legal team had, though with a more positive spin. Whenever a problem arose, they had many options for dealing with that problem. Invariably, they picked the solution that relied upon the greatest possible assertion of presidential power. By basing their actions on these broad theories, they converted those theories into facts -- historical precedents that future presidents will be able to cite when they, too, want to take an action seemingly prohibited by a law or treaty. This long-term agenda, as Goldsmith recently noted, sometimes caused greater short-term difficulties.

tango: do you ever answer questions that aren't total softballs that play to your particular political leftist bent?

Charlie Savage: Actually, I argue throughout the book that executive power is not a partisan issue. Even though we are having this discussion in the context of a Republican administration, we have had Democrats as president in the past and will have them as president in the future. Those Democrats will inherit the enhanced powers that the Bush-Cheney administration has engineered, and will be able to use them to achieve their own policy ends.

Charlie Savage: Past Democrats presidents have also contributed to the growth of the "imperial presidency" (a term coined by the historian Arthur Schlesinger Jr.) over the past half century. Harry Truman launched the Korean War without going to Congress. LBJ "Americanized" the Vietnam War on his own claimed inherent authority and had the government spy on his domestic political enemies. Even Jimmy Carter set the precedent for pulling out of a ratified treaty without consulting the Senate, and Bill Clinton, in Kosovo, was the first president to authorize a military action that violated the War Powers Resolution's 60-day clock.

Charlie Savage: If you go to www.charliesavage.com and click on "reviews" and then scroll down to the bottom, you'll see seven blurbs endorsing this book. (They're also on the back cover.) Among them are several very prominent conservative thinkers. For example, the columnist George F. Will wrote "Time was, conservatives relished their role as America's designated worriers about concentrated and unchecked government power, especially in the uniquely potent office of the presidency. As Charlie Savage demonstrates, there are large new reasons for worrying. With meticulous reporting and lucid explanations of audacious theories invented to justify novel presidential powers, Savage identifies a growing, and dangerous, constitutional imbalance."

dr_conlaw: Charlie: I have been enjoying reading your wonderful book. I am interested in your quotation from Justice Scalia's Ottawa speech about his role in the Legal Counsel's office and work on foreign policy actions by the Government. Where can I find a full transcript of that speech? And, is there more about his work here?

Charlie Savage: I don't think a full transcript of Justice Scalia's speech exists. I have a recording of it that my wife made from the audience (I was there to be a panelist). Even more unfortunately, because the recorder got filled up, we don't even have a recording of a very interesting panel discussion that closed that conference in which Scalia used Jack Bauer and "24" during a discussion of laws limiting torture.

pandachew: Charlie, what about the White House's assertion that extraordinary executive powers are called for because of the nature of "the enemy." That is, we're not fighting them openly on the battlefield, and they have new technologies (cell phones, etc...) combined with the potential of using WMD in massively destructive attacks?

Charlie Savage: There's a legal debate and a policy debate here that sometimes get conflated. The policy debate is: are the rules established by Congress (statutes and ratified treaties) good rules, or should they be changed given the new threats we are facing after 9/11? The legal debate is: can the president decide, on his own, that the rules are bad rules and then simply ignore them, or under our Constitution is he instead required to go to Congress and ask them to change the rules?

Charlie Savage: This conflation served to muddy the waters of public discourse after the New York Times revealed the warrantless wiretapping program, which clashed with a 1978 law requiring the government to obtain warrants whenever eavesdropping on Americans. Administration defenders attacked critics for being soft on terrorism, claiming that the critics (including a large number of conservatives) did not want to listen in on Al Qaeda phone calls. This argument was silly -- obviously everyone wants the government to listen to AQ phone calls -- but it was effective because the real question is more subtle and complex. The real question was whether the president has the power to bypass a law on his own, or whether the rule of law demanded that he instead go to Congress to change the law if it truly didn't make sense anymore. We know now that this was also the nature of the March 2004 dispute inside the Justice Department, and that it resulted in the threat of a mass resignation by some very conservative politically appointed officials.

Charlie Savage: That's all we have time for today. Thanks for writing in. If these issues intrigue you, I welcome you to check out my book and hope you enjoy it.

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