All right, my friends, welcome back to Antiwar Radio.
I'm your host, Scott Horton, and introducing you to the show.
My name is Scott Horton, and I'm joined by Walter Pincus in the Washington Post quoting you about this executive order that had been making the rounds on the internet here, and I have to tell you, I thought, no, I couldn't possibly be as bad as what all these people are saying about it, and then I read this Pincus article where he's quoting you talking about it, a former assistant deputy attorney general to Ronald Reagan, basically telling me in this article that the very worst rumors about this executive order were true, that the language is so broad that the President of the United States can basically say that the President of the United States has basically moved to block people from their property, to take property from Americans with basically no cause or evidence.
The gist of the executive order enables the President to identify without notice any person who he says creates a quote, significant risk, end quote, of undermining reconstruction in Iraq or their political reform programs through an act of violence or otherwise.
That is, you don't have to have done anything in order to be listed.
You just have to create, in the President's view, a significant risk of doing so.
And once you're listed, you're not required to be notified that you're going to be listed.
Then all of your financial assets in the United States are blocked, and it becomes illegal for anyone to provide you with goods or services, even legal services, to challenge the constitutionality of what the President has done.
That's incredible.
Wait, let me stop you right there.
First of all, this pose a significant risk.
Basically, your point is, then, that that's a lower threshold of evidence, like the difference between probable cause and an objective, reasonable belief on the part of the officer, that kind of thing?
Oh, yes.
I mean, significant risk really has no gloss that you can deduce from centuries of judicial interpretation or application.
Significant risk could be created if someone was vociferous against the President's Iraq policy, and they, then, probably statistically would be more likely to do something inimical than somebody who supports his Iraq policy.
So, to that extent, significant risk is an open-ended category, which, say, means the President has a sword of Damocles over all of our heads if we're critics or detractors of his war policy in the Middle East.
And on that score, we could, without any notice, receive a financial death penalty.
And one of the things that's even more worrisome about the order is, even after you're listed, in which you're not given notice in advance, there is no opportunity to discredit the allegation.
If you come forward and present evidence to show you're not a significant risk of undermining the reconstruction effort in Iraq, it's a flagrant violation of the Constitution.
I don't believe it would survive a court challenge for a second.
Now, just last week, I guess it was, Hillary Clinton asked the Defense Department whether they had any plans for withdrawal from Iraq, and she was denounced by the Assistant Secretary of Defense for Policy, Eric Edelman, and later by Dick Cheney for basically providing aid and comfort to the enemy.
Not in those exact words, those are the words from the treason statutes, of course, but basically he said, you're helping the terrorists by asking these questions, Senator Clinton, so basically under the language of this statute, George Bush, could he say that Hillary Clinton is helping the terrorists and seize her property?
Well, that would be an arguable claim.
Yes, because then if that's a significant risk that she is shown by her disagreement with the President's policies in Iraq, that she then might follow those words with something even more assertive, including action that could violate the law.
But say, the key element here with regard to the executive order is that you do not have to actually have done anything in order to be subject to this blacklisting financially.
All you have to do is be creating a significant risk, and that does not mean that you have to have engaged in a conspiracy, that you don't have to have agreed to do something illegal.
It doesn't mean that you actually have gotten down the road of attempting to do something illegal.
It just means having a significant risk, a little bit like having genes that expose you to a significant risk of some kind of ailment.
And that's what makes this so unprecedented in scope.
And you also brought up there about the third parties, basically, if they tried to persecute me under this executive order, I couldn't hire you to be my lawyer without putting you at risk.
Exactly right.
I would be committing a crime.
And remember, this other sort of Orwellian element here in the executive order is that there is no requirement that anybody be given notice that they're on the list.
So if you're on the list and I don't know about it and I provide you legal services, then I'm guilty of a crime, even though I didn't know that I was prohibited from providing you legal services.
It's a reminder of Caligula, the Roman emperor who put the laws so high and so small up on a wall, no one could read them, so he could trap them into illegalities.
That's sort of the nature of this administration.
It feels more comfortable with Caligula than with the United States Constitution.
Well, and now, I'm sorry, you mentioned at the beginning, but what law is he citing for the authority to do this?
Well, this is the International Economic Emergency Powers Act of 1978.
It was first used by President Jimmy Carter during the Iranian hostage crisis to freeze many of the assets and claims that U.S. citizens had against the government of Iran for purposes of negotiating a global settlement and the release of the hostages.
But it is very open-ended.
I say it's one of the characteristic abnegations of congressional responsibility for itself, enacting sanctions and being held accountable for them in times of crisis or conflict.
Instead, they just hand off the ball to the president and say, do whatever you want, and then they gripe after the fact when it may be abused.
Well, Congress should know what it's getting when it has this enormous delegation of authority to the president, and it should take it back.
Now, help me out here, because I'm out here in the sticks and the heart of Texas and not over there in Washington, D.C., where all these goings-on go on.
But I seem to remember that there was a movement in the 1990s among conservatives to, well, to basically argue that the doctrine of the living Constitution was corrupt and that the Constitution, the poor thing, was in exile, and it was time to bring it back and to actually have the rule of law, the Constitution means what it says.
This was kind of the Federalist Society movement, right?
These people, these strict constructionists.
Yes, well, when I was there and developing the origins of the Federalist Society in the early 1980s, and you're exactly right, the entire philosophy was the Founding Fathers' intent should be honored, and if you disagree with that intent, then you amend the Constitution.
But judges and elected officials shouldn't be in the business of treating the United States Constitution as an organic entity that wasn't static, was dynamic, and it changed a little bit on its own, something like spontaneous combustion.
The idea that the rule of law required that the intent of the makers be honored, and then they put in a method of altering the document, and I think we've got 28 amendments to the Constitution, but that's the proper procedural way in which we effectuate changes in doctrine, consistent with the rule of law.
And now we have these claims that post-9-11, the Constitution is basically defunct except for the executive branch, which then is empowered to do anything that it wishes to in the name of foreign intelligence collection or national security, including proclaiming all of the United States as an active battlefield where the President could impose martial law and use a military force to kill anybody he thought was Al Qaeda.
Now, what's the intersection between this Constitution and exile theory and the unitary executive?
From here it looks like all these people or all these ideas are basically coming out of your group, the Federalist Society.
Well, I've sort of left part of company with the Federalist Society.
I think the clearest example is their least tacit support of Harriet Meyers to be on the United States Supreme Court, even though it was an insult to the institution to even consider her qualified.
But in any event, I don't find any intersection between the unitary executive and the intent of the framers.
Indeed, the unitary executive is contrary to the clear understanding of checks and balances in the Constitution.
It's very regular that the Constitution anticipates a blending or a sharing of comparable powers between two branches.
Take, for example, the idea of enacting a law.
That's not totally a Congressional function because Congress passes a bill.
It's presented to the President for his signature.
If he vetoes it, then there's the possibility of an override.
But certainly in that case, we understand that the legislative process is a mixture of Congress and the executive branch.
They are both involved.
Similarly, the executive function is one of appointment.
Yet the Senate of the United States participates in confirmation all the time.
Negotiating treaties is an executive function, but the Senate has to ratify treaties.
So the U.S. Constitution regularly has one branch participate partially in the functions of another in order to superintend and to check excesses.
The unitary executive is a wrongful understanding of the checks and balances because it posits that once you have a power that you claim is executive, for example, waging war, then no other branch can participate whatsoever.
That is nonsense.
Congress could end the war in Iraq tomorrow by cutting off all appropriations.
So I do not think that there's any intersection between unitary executive and the intent of the Founding Fathers.
Indeed, I find unitary executive contrary to the Founding Fathers.
Well, why is it that when I read on the internet about you, I find conservatives everywhere saying, ah, Bruce Fine's gone liberal on us, must have always been a liberal or something, because what else explains his betrayal?
Well, I don't know.
These people must have short memories.
I think I wrote 50 columns in succession urging the impeachment and conviction of William Jefferson Clinton.
Indeed, I probably was the beginning inspiration with Bob Barr on that score, and I still believe in that.
I don't support the Democratic domestic agenda whatsoever.
I have no job offers and no intent to accept any job offer from a Democrat.
So this is simply a type of ad hominem attack if you don't have any argument to try to deflect the attention of your opponents.
So that's all I can conceive of, because the idea that I've become a Democrat or a Libertarian is ridiculous.
I'm still a Republican.
Wow.
So wait, you say you were instrumental in pushing Bob Barr on impeachment.
If my memory serves, Bob Barr tried to impeach Bill Clinton before the Monica Lewinsky scandal broke.
Yes, on some of the campaign abuses.
You remember the sleeping over in the Lincoln bedroom and that sort of thing.
Yeah, the reality of the Lincoln pictures.
I remember I had a breakfast with Bob early on and discussed this, and we had a national press conference discussing this matter.
So the idea that I'm somehow in the favorite of the liberals or Democrats is so preposterous.
I say it's hard to fathom that these people have anything other than desperation and trying to devise an argument for opposing the substance of my theories.
Absolutely.
And, you know, even for people who aren't very familiar with you, if they know Bob Barr and they know you're friends with him, then you couldn't possibly be a liberal because Bob Barr is a conservative.
Right.
There's no doubt about that.
And now you're actually you have this new organization, the American Freedom Agenda with Bob Barr.
Can you tell us about that as a 10 point plan or something?
Well, this is an effort to restore checks and balances and protections against government abuses.
It's not anti Bush or Cheney.
Its desired goal is to prevent any occupant of the White House, whether it's Hillary Clinton, Rudy Giuliani, Republican, Democrat, independents from exercising unchecked power, which invariably degenerates into abuses and lawlessness.
And the 10 points are ending military commissions, ending executive privilege to frustrate congressional oversight, ending presidential signing statements where the president signs a bill but doesn't enforce the parts he doesn't like, ending the president's authority to identify US citizens as enemy combatants and dispatching them for life in Guantanamo Bay without access to lawyers, preventing the use of secret evidence to designate people or organizations as terrorist organizations, ending the possibility of prosecuting journalists under the Espionage Act because they expose national security abuses like the warrantless surveillance program or secret prisons in Europe, ending the practice of kidnapping and imprisoning and torturing individuals abroad that is now alienating our friends like Great Britain and Germany and Italy from cooperating with us on international terrorist investigations, and restoring habeas corpus.
That's the right of any executive detainee to ask an impartial magistrate whether his detention is legal and factually justified.
These are the main legislative planks of the American freedom agenda.
We've got a bill that's about to be introduced into Congress.
We hope both Republicans and Democrats would agree to the substance of everything in the agenda.
When it comes to these matters of constitutional urgency, we're all Americans.
We're not Democrats or Republicans.
And now your intent with this is to get the candidates for president from both parties to sign on to this pledge, right?
That is correct.
We would like all the presidential candidates to agree to the substance of the American freedom agenda unilaterally even without the enactment of the bill into law.
And we've gotten Ron Paul of Texas to sign.
We've not gotten anyone else, but we're continuing to urge their initials on the American freedom pledge.
Well, now you gave Mitt Romney a chance to sign, didn't you?
Yes, we sure did, and he turned us down and we issued a press release saying we didn't think a president who could not subscribe to these fundamental democratic constitutional principles is a trustworthy custodian of the White House.
I have to say, when I hear you read through the list, the only thing radical about it is the things that you're trying to get these people to vow to not participate in.
I mean, this sounds like very basic American law.
That's right.
It's about as difficult as signing the Declaration of Independence.
But I've written a column that I don't think all or perhaps most of the candidates for president in 2008 would have joined Tom Jefferson and John Hancock and others in signing the Declaration of Independence.
I think the majority would have been comfortable with the powers exercised by King George III.
Yeah, you're probably right about that.
In fact, you say in reading about you on the internet, I've seen where you've said a few times that you think that most members of Congress don't even know anything about the Constitution.
That's right.
I don't want to be pedantic or condescending, but I'm up there virtually every day and the number who could recite even a fraction of the powers entrusted to the three branches, you could count on your one hand with fingers left over.
The people who occupy those offices simply are exceptionally ill-educated and ill-trained in constitutional philosophy and even their duties in taking a constitutional oath of what oversight powers they must exercise in order to ensure we have government that's transparent, that we have sunshine, the best disinfectant against wrongdoing and maladministration.
They just have no understanding at all of their obligations and as a consequence, we've had secret government, we've had abuses for five, six years, and the Congress seems to be acquiescent whether it's Republicans or Democrats in power.
In fact, a year ago, you testified in front of the Senate, the Republicans, and asked them to cut off the funds for any warrantless wiretapping, which is their authority to do, and that was a year ago.
More than a year ago, now the Democrats are in power and I was just reading the headline from the New York Times, James Rice, and yesterday, Democrats scrambling to legalize all of the warrantless wiretapping that has been a blatant felony all this time.
It really is quite stunning.
This is trying to expand the program when the Bush administration for six years has not assembled a crumb of evidence, not a crumb, that complying with the statute would have disabled them from acquiring important foreign intelligence information.
It's just, well, we say it, so you have to believe it.
Now, why would you believe that out of a president who was so blatant in his lies about weapons of mass destruction, who has been so blatant and lying indeed about the warrantless surveillance program?
In 2004, during his campaign, President Bush stood up and said, I can guarantee you, if there's an electronic surveillance or a wiretap, there's a warrant out there.
Well, we know that wasn't true when he said that he knew he had authorized warrantless surveillance programs.
So, we simply cannot rely upon the trustworthiness of the executive branch that they need this additional power because the statute otherwise would handcuff them in gathering intelligence about Osama bin Laden.
We need to say, where's the proof?
Where are the facts there?
We cannot accept at face value these claims of deficiencies.
Remember, the president also has said, we need these military commissions that combine judge, jury, and prosecutor in order to prosecute alleged war criminals.
Well, did you need them?
You've had one prosecution in six years.
It was David Hicks, a wayward Australian youth who wandered his way into Afghanistan and got training at a terrorist training camp.
And the one case in six years resulted in an imprisonment for nine months, which is going to be served in Australia.
Nine months?
Remember John Walker Lynn, the American Taliban?
He was tried in the regular court system and got 20 years in prison.
20 years, compared to nine months.
Well then, you said you needed these military commissions so urgently, and yet they blind dormant for all this time.
So you just cannot give credence to these claims that these new powers are necessary to defeat international terrorism.
You have to demand real facts, real concrete evidence that they are needed and that's been totally lacking.
And I say it's not just that these extraordinary measures cause injustices, they're also making us less safe.
Because we have now our European partners refusing to cooperate with us because they worry anyone who is detained in a covert action will be tortured or otherwise sentenced to life without any evidence.
And the European, excuse me, Committee of the British Parliament just last week identified an instance in 2005 where the British had refused to join the US in a covert action with the Central Intelligence Agency because there were no assurances that the people who might be captured would not be tortured or otherwise denied due process.
So we are making ourselves less safe by this lawlessness and sort of cowboy and Indian approach to fighting international terrorism.
I'm Scott Horton, this is Antiwar Radio, I'm talking with Bruce Fine from the American Freedom Agenda and as you point out, sir, all this abuse of power goes back to the war.
Just like Randolph Bourne said back in the days before World War I, war is the health of the state.
It is our imperial foreign policy, well, it's put us in this position where George Bush is the ruler of the world, how could he possibly be the ruler of the world and not the ruler of us too?
And so I wonder why bringing our troops home from their 700 and something bases around the world is not part of the American Freedom Agenda.
Well, you know, there's concession to the shortness of life and I suppose that the American Freedom Agenda also wanted to be more ambitious.
We could try to eliminate every evil in the world.
You've got to be practical as to what is plausible in a particular time frame.
The American Freedom Agenda does not purport to be the solution to everything that's bad in the American political system.
And that's just a judgment really I made as to where I thought the most important deficiencies were in terms of the structural diffusion of power under the United States Constitution.
And that's why I chose those particular ten reasonable people could differ, but you've got to make decisions, you can't be in suspended animation like ever, forever, then you're like Hamlet and do nothing.
Sure, I understand.
But, well, personally, are you in favor of withdrawal and ending the empire?
Well, I don't think that it makes sense to withdraw everywhere.
I think there are appropriate places where United States troops can serve a deterrent.
I think that's probably true in South Korea where we have a North Korean regime which is, if not paranoid, semi-demented.
There may be a use for United States aircraft on naval installations there in the Persian Gulf, which is very unstable.
I do not believe that it makes sense to think that all the world is peaceful and if we decide to retreat everywhere then we will suffer no convulsions.
There may be cases even for humanitarian missions.
I don't think it was one of the finest hours in the United States where we played spectator to a genocide both in Srebrenica and Serbia and in Rwanda.
That doesn't mean we should be reckless in utilizing force, but as in all things in life it's matters of degree and sense and prudence.
And so how does that sense of prudence evaluate the situation in Iraq?
Well, what I've said in Iraq that I believe what we ought to do is organize on our own plebiscite for partition onto Kurdistan, a central Sunni state, and a Shia state, and then leave.
There is something obscene about, even if it was erroneous, going into a country, destroying its government, and then leaving and say, oh well, you just kill yourself.
For good or for ill we do have some responsibility since we created the power vacuum in Iraq to make certain that to the extent possible we can leave it in a way that has some possibility of stability for the people who remain there.
Okay, and I'm sorry I should have brought this up earlier in the interview, but if I could just get one more comment from you, I'd like to see if I could get you to address the national security letters and the administrative subpoenas in the Patriot Act.
For those just tuning in, I'm talking with Bruce Fine.
He's the former assistant deputy attorney general for Ronald Reagan's administration back in the 1980s.
Can you address the national security letters for us and the administrative subpoenas and what they have to do with the Fourth Amendment?
Well, the Fourth Amendment customarily requires that a judge find probable cause to believe the subject of a search or seizure as evidence of criminality or other wrongdoing before the government then conceives records, search homes and otherwise.
Now, national security letters are an exception or they purport to be.
They authorize the FBI unilaterally to decide that if they are conducting a terrorist investigation to demand records about you from credit agencies and those who are selling goods and services where you may have had a credit to demand records from banks and otherwise about you without any judicial oversight.
Now, that particular authority has been challenged as violating the Fourth Amendment.
We've gotten no definitive rulings in the court system yet.
I myself have been involved in reforming the national security letters to require that there be some reasonable and articulable suspicion that the target of the national security letter be involved in some kind of terrorist act or be acting as a foreign agent before they can be issued.
That is, you help write proposed legislation?
Yes, that should be introduced.
It was with the House Judiciary Subcommittee on the Constitution, Congressmen Gerald Nadler of New York and William Delahunt of Massachusetts and Jeff Flake of Arizona being prime sponsors.
But to say the main worry of these national security letters is it enables the FBI to snoop around into the privacy of your financial transactions and business transactions without any judicial oversight and an internal report done by the Inspector General of the Department of Justice Gerald Fine showed that there are literally thousands of violations of the rules for issuing national security letters during the first five years of its administration under the Patriot Act.
This was despite the fact that Alberto Gonzalez, the Attorney General, had said that there were virtually no problems with the national security letters when he reported to Congress, but that's just another example of the way in which we get counterfactual representations to Congress in its oversight functions.
But to say the sensible thing to do in my judgment is to ensure that national security letters are only issued when there is some clear demonstrable evidence that the target is engaged in some kind of terrorist act or act on behalf of a foreign power.
Otherwise, you're basically giving the federal government a license to scrutinize everybody on a whim, and that's simply a step towards, even though it sounds shocking, a police state, but an atmosphere of intimidation that might be reminiscent of East Germany with a Stasi, but certainly is not the goal and ambition of the Founding Fathers and the Fourth Amendment.
You remember, one of the main grievances that the colonists had against King George III was this issuing of these general risks of assistance that enabled British customs officials to walk through everybody's home without a warrant, searching for smuggled goods.
And I think the Founding Fathers' vision still obtains today.
In order to get that robustness of society that's uncowed, you need these enclaves of privacy that should not be penetrated unless there's some serious reason to think that wrongdoing is underway.
And now, under the FISA statute, the Foreign Intelligence Surveillance Act of 1978, don't they already, the FBI or the National Security Agency or whoever, can't they already basically tap your phone or my phone for three days and then go to FISA and say, listen, I need a rubber stamp on this?
Yes, I think we need to distinguish for the audience because it can be confusing.
That's different than national security letters seek documents.
They don't address intercepting phone conversations or breaking and entering homes like FISA does.
But yes, FISA has an emergency provision that for 72 hours, even before a warrant is issued, the government can go ahead and intercept emails and telephone conversations and then return to the FISA court.
Moreover, in a time of war, there's a 15-day window for undertaking warrantless surveillance.
And then during that window, Congress could extend the period if it's thought necessary, which obviously is a period of time the president never sought to utilize since he insisted he could violate and flout FISA under some theory of inherent constitutional authority.
Okay, but that would not count for documents, though, the three-day window there?
No, that's electronic surveillance.
I see.
And now what check can be added to the national security letters besides just making a judge say it's okay?
Well, I say the way in which the national security letters can be altered is under the current statute, all the FBI has to certify is that the records are being sought in connection with a terrorist investigation.
There's no threshold of proof or evidence of wrongdoing that's required in order to issue them.
The amended statute says, well, you can't just say this is pertinent to a terrorist investigation, give me the records.
You've got to show that the subject of the records is likely to be implicated in some way in wrongdoing by clear and articulate evidence.
But even then, it's just one cop has to satisfy another cop, right, rather than a judge?
But then you've got to notify the target after a period of time, and the target then would have an opportunity to sue for a violation for issuing a national security letter that did not satisfy the threshold.
So that had at least some teeth in it.
Now, you're correct, it still has the worrisome element is that the initial document demand can be underway without a judge examining it in advance.
Now, I say I was reluctant to suggest even that is permissible because I don't believe the FBI has ever shown why the lag time in getting a judicial warrant would have in fact obstructed any investigation.
That is, they haven't shown that you need this speed because otherwise these documents would be destroyed.
But you've got to make compromises typically in the legislative process, though what came out wasn't ideal, but I think substantial improvement over the existing law.
Well, gee, it seems to me like when Ron Paul's president, you'd make a pretty good attorney general.
Well, maybe.
I'm not sure that would be a consensus choice from the bloggers you mentioned.
All right, well, hey, listen, I really appreciate your time on the show today, everybody.
Bruce Fine, he's a former assistant deputy attorney general for Ronald Reagan.
He's the founder of the Liberty Coalition, which is a whole other interview we should talk about sometime, and started the American Freedom Agenda.
Thanks very much for your time today, Bruce.
Thank you for inviting me.
Good luck.
