06/30/09 – Bruce Fein – The Scott Horton Show

Alright y'all, welcome back to the show.
It's Anti-War Radio on Chaos 95.9 FM in Austin, Texas.
I'm Scott Horton and I'm pleased to welcome back to the show Bruce Fine.
He is the former Associate Deputy Attorney General in the Reagan administration.
He's the man who wrote up the Articles of Impeachment on William Jefferson Clinton for his impeachment trial in 1998.
And well, geez, it looks like he's part of a group called the Velvet Revolution, speaking of Velvet Revolutions.
Welcome back to the show.
Bruce, how are you doing?
I'm doing very well.
Thank you, Scott.
Thank you very much for joining us today.
So what is the Velvet Revolution?
Well it really shouldn't be a revolution.
It's really an attempt to restore the rule of law to the United States of America, where we expect officers of the United States to have their true loyalty to uphold and defend the Constitution, not any particular individual.
And what we've seen in the last year is that both the Bush-Cheney-Dunvar, as I call, as well as the Obama administration, is really a flouting of the law with institutions, whether it's signing statements, whether it's state secrets, whether it's non-prosecution of crimes like torture or the violations of the Foreign Intelligence Surveillance Act, even violating the limitations on bailout money to banks and financial institutions and having to go to motor companies like Chrysler and General Motors.
It's a breakdown, really, in the rule of law.
It's the psychology of what I call empire, the national security state, in which every claim that's made is necessary to make risk less, whether it's Osama bin Laden or unemployment, justifies flouting the law.
And we think that's very, very dangerous to what we are as a country.
And it speaks very ill of our own character that we would start to emulate all of our former enemies rather than holding ourselves separate and above that kind of squalid kind of behavior that really is a black mark on our civilization.
Well, I saw you quoted from the press conference yesterday in one of the papers, talking about how the world held America in awe in the 1970s, when Richard Nixon was forced out of office.
Here, the President of the United States, and frankly, sir, this is what I learned as a little kid when I said, I want to be the President so I can do whatever I want.
And my dad explained to me that, no, a king is a king, a president is merely a president.
And just a few years before you were born, one of them was forced out of office because he broke the law.
And in America, the law applies to everyone.
Even the President.
Well, that's absolutely right.
My most thrilling moment of my entire life is, 62 years I've been through a lot, was seeing Richard Nixon leave on that helicopter, he said, no, you're not the law, you're not above the law.
Here, the President is a temporary steward of sovereignty of the people.
He cannot flout the rules that apply to everyone else.
This is a horizontal, not a vertical nation.
And if you're going to obstruct justice, you're going to illegally spy, then you're going to leave the Presidency of the United States.
And it was true at the time, he was the most powerful man in all of the world, and we threw him out of office.
The American people did, because he flouted the law.
And it was true.
Mitterrand in France and other foreign leaders were just stunned that we would throw someone of office for what they thought were the crimes that government officials committed every day there.
And that's why they're Europe, and we're the United States of America, we need to make it stay that way.
And now, correct me if I'm wrong here, because I'm not the lawyer, I'm just the radio show host.
The lawyer, Scott Horton, is the other guy.
When the Supreme Court ruled in the Hamdan case, and they said that the President of the United States does not have the power, as Commander-in-Chief, to kidnap, torture and murder whoever he feels like, were they not, in effect, saying, you people are guilty of thousands and thousands of counts of kidnapping, torture and murder?
You were illegally doing it each time you did it, up until the day that ruling came down, right?
Well, I don't know it goes that far, Scott, because, you know, criminality requires a vicious intent, if you will, and there could be conceivable defenses of reliance on legal advice given by our good friends John Yu and others at the Office of Legal Counsel, Mr. Bradbury, who have been discredited.
I just make those because we don't want to get in the position of the Queen of Hearts and Alice in Wonderland sentence first verdict afterwards.
But you're correct in the sense that it's certainly cast a dark cloud over the legality of a whole host, really, thousands of decisions that the Bush-Cheney-Dumfried made, and the Obama administration is choosing to ignore, despite the obligation to faithfully execute the laws, much to the deterioration and, I think, the bad reputation of the United States.
Well, but doesn't the Military Commissions Act retroactively give immunity to anyone who participated in this?
No, it really does not.
The Military Commissions Act did try to give a greater defense for those who would be prosecuted under the War Crimes Act to good faith reliance upon legal advice.
But it's got to be good faith reliance on legal advice if they say the rack and screw is not torture and you use the rack and screw, you don't have a defense under the Military Commissions Act.
And, moreover, Scott, that just addressed crimes under the War Crimes Act.
It didn't address crimes under the torture statute or under the Foreign Intelligence Surveillance Act.
So those crimes still are outstanding.
There are thousands of them that have gone unprosecuted, uninvestigated, and, of course, people can say, geez, these crimes were committed under very stressful circumstances.
We were worried about Al Qaeda cells.
It could be politically convulsive to prosecute the cases now.
That's why the Founding Fathers gave the President the pardon power.
The pardon power is different than non-prosecution, because you've got to accept responsibility for the leniency for the clemency.
That's what Bush had to do when he gave a clemency to Scooter Libby, convicted of perjury in the Valerie Plame debacle.
It is what President Ford did when he pardoned Richard Nixon.
He did probably lose the election in 1976, but at least he took responsibility for it.
And, moreover, when you issue a pardon, you say that you will forgive the crime, but it was still criminal.
The recipient of the pardon has to acknowledge that what he did was criminal.
You can't force someone to accept a pardon.
So pardons don't create a precedent that something was done that was illegal that becomes legal by inaction.
What Obama is doing is creating this far greater danger of simply by ignoring these gross violations of the torture law and FISA, saying it was legal.
They will be precedents that will lie around like loaded weapons, ready for any future president or occupant to claim, yeah, as long as you say national security, you can commit torture, you can commit any law violation that you want, and it will be viewed by custom as not having been really a crime because you were really trying to prevent another kind of 9-11.
And that's very, very dangerous stuff.
I'm talking with Bruce Fine.
He's the former Associate Deputy Attorney General in the Ronald Reagan administration.
Now there seems to be some confusion, Bruce, about whether it's Obama's job to order criminal investigations into this.
And he said, oh, no, I think we don't want to look backwards.
It was reported that people in the Justice Department were really upset.
And they said, well, you know, this constitutional law professor ought to understand that we're an independent agency here and that the Justice Department will make this decision without him.
And yet it seems like your criticism yesterday was that Obama is choosing to shut his eyes, implying that he ought to order a criminal investigation into some of these things.
Well, yes, the Department of Justice is not an independent agency.
There have been bills around, Scott, to make it so, but it would probably be unconstitutional to do it by statute because the President takes an oath to faithfully execute the laws.
It's enshrined in Article II, Section 3 of the Constitution, to faithfully execute the laws.
That was one of the reasons why Richard Nixon was impeached.
And I helped draft those Articles of Impeachment as well then as part of the Justice Department working with the House Judiciary Committee.
That is an obligation that the President has.
He cannot devolve it on anyone else.
It's his duty.
If he does not faithfully execute the laws, in my judgment, he is committing an impeachable offense.
Indeed, one of the great grievances that the British Parliament had against British kings was that they would not execute the laws.
Oftentimes, they were recusancy laws against Catholics.
And so in the English Bill of Rights of 1688, that was sort of a harbinger of her own Bill of Rights and her own Constitution said, no king can decline to execute the laws without the permission of the Parliament.
And we absorb that kind of check and balance in our own Constitution, so it's really just quite outrageous that the President should simply say, all right, waterboarding is torture.
My Attorney General agrees waterboarding is torture.
Bush and Cheney have admitted they authorize waterboarding, but I don't want to enforce the law anyway because I think it would be politically inconvenient.
That's not an acceptable resolution.
If he thinks it's politically inconvenient, then he's got to use the pardon power, stand up, Mr. Obama, and take the political heat in and take the responsibility for saying you're going to forgive these people for what they've authorized and indeed endangered the United States by setting a precedent that would enable foreign countries to torture our servicemen and say, well, the United States does it as well.
But take the responsibility.
You just can't shut your eyes and say, I don't want to enforce the law.
I grew up a period of time, Scott, when that was the attitude in the South, when blacks were murdered.
We just will shut our eyes and you can lynch blacks with impunity.
That was an impeachable offense then, it's equally impeachable to say you can commit torture with impunity if you're a government official and you say you're fighting Al Qaeda.
So now to be perfectly clear, he's, the President of the United States is mandated in the Constitution to instruct the Attorney General of the United States to follow the evidence and if it comes down to it, impanel a grand jury, indict Dick Cheney and George Bush for their crimes, but he is violating that oath when he says anything like you should not do such things.
Yes, he is.
And I say, he always has the option if he doesn't want to go forward to pardon the individuals and say, I think it'd be too convulsive and that's the power that the Constitution gives him.
He just cannot ignore the law and say, we don't want to investigate, which is what he's doing at present.
Okay.
And now you make the point that he, George Bush and Dick Cheney both have admitted live on TV, bragged I guess, that they ordered waterboarding and as you say, the Attorney General of the United States testified before the U.S. Senate as confirmation hearing that waterboarding is torture and that torture is a felony.
Yeah.
And the President himself, Obama, has said waterboarding is torture as well.
So what do we have?
I mean, you don't even have a long investigation, Scott.
You have two suspects.
They admit that's a waterboarding.
The law enforcement authorities, the President and the Attorney General say waterboarding is torture.
Torture has no exceptions.
There's not an Al-Qaeda exception.
There's not a ticking dime bomb exception in the statute.
There's not an exception for getting good intelligence, none whatsoever.
And it was never been amended by the Congress of the United States.
So what do you have?
A clear statement of the President.
We have a former President and Vice President who committed a serious felony, torture, and yet I'm doing nothing about it.
Well, that is not acceptable if you want to have a rule of law.
That's what we would call third-world banana republics, let Presidents and officials get away with that kind of criminality with impunity, even when it's done open and above board.
Because as you've said, Scott, these are authorizations that they boast about.
They don't dry their eyes.
They boast that they authorized waterboarding.
They said they would do it again.
Do you happen to know any founding father quotes that might be applicable in this situation?
Well, when it comes also to the kinds of interrogations that the subordinates did, because obviously Cheney and Bush did not go out and do the interrogations, the waterboarding themselves, that James Madison said, of course, if a President fails to superintend his subordinates and they commit violations against the Constitution of the United States, he is certainly impeachable for those kinds of crimes.
And that's exactly what we've seen here.
We don't expect the President or Vice President to go and interrogate, but they are absolutely responsible for all the actions of their subordinates.
And I say, if you look at the Nixon impeachment, that's why we got Nixon.
He was obstructing justice.
He was trying to prevent the full disclosure of all the Watergate crimes and related crimes concerning the burglary of Daniel Ellsberg's psychiatrist's office and things of that sort.
And if you read the articles of impeachment that were voted by the House Judiciary Committee, they state failing to faithfully execute the laws as he was required by his constitutional obligations.
And I say it's even more serious here than it was in Nixon's case, because it is the former President and Vice President, those who are the model, those who set the example, those whose lawlessness invites every man and woman to become a law unto themselves, if that lawlessness is not punished.
And Finken and I was involved, as you pointed out, in the article against William Jefferson Clinton, and although his crimes weren't even like Nixon's, still, you know, you can't have a President, in my judgment, say, well, I can lie under oath to a federal judge.
This is not Ken Starr, a federal judge with impunity, and not apologize and say it was wrong.
I can say, hey, I'm Mr. President, if it was sex, I don't care what the judge told me, I can lie, or no other citizen cannot lie.
No.
There are no dispensations here that distinguish between a lord and vassals and serfs, no.
We have one class of person in the United States, they're all citizens, they're all the same under the law.
It doesn't matter whether you're President or the most common doorman, you all have equal justice under the law, and Clinton didn't quite get that, and I'm saying Obama now is ignoring law violations by the highest officers of the land, where the obligation to comply with the Constitution is at its zenith.
A common citizen doesn't take an oath to support the Constitution, the President and the Vice President do.
Now help me out with the violations of the FISA statute here.
There are clearly millions of counts, if you read James Bamford's book, of violations of this FISA statute, and it, I think, says there should be five years in prison and a $10,000 fine or something for each violation of it, and I guess most people, when we talk about Bush administration crimes, we focus on crucifying people to death and that kind of thing, and yet millions of counts of illegal wiretapping is pretty serious business, isn't it?
Yeah, it was.
Those were some of the counts that were used against Nixon, because he was engaged in illegal spying and surveillance as well, and we know COINTELPRO, indeed.
It was that kind of illegal surveillance that led to the enactment of the Foreign Intelligence Surveillance Act by the Church Committee's disclosures of the FBI, CIA, illegally opening mail, illegally examining telegrams, illegally spying on war protesters and things of that sort, and what we have in the Foreign Intelligence Surveillance Act is an effort to try to prevent that kind of abuse, that kind of chilling effect on political participation, by requiring that a federal judge issue a warrant if you're going to spy for foreign intelligence purposes, and Scott, the standard is not insuperable.
In all the years, 20-some years since the act, about 20,000 warrants have been granted.
About five or six were denied, so it's not a very high hurdle yet you've got to get.
Judges are very indulgent in giving these warrants, but it says if you're going to spy on an American, you're going to target him for electronic surveillance on American soil to gather foreign intelligence, you need to get a warrant, and we know for at least five years, the Bush administration said, the hell with a warrant.
The National Security Agency just said, well, you just identify people you think are Al-Qaeda on your own, we understand you're omniscient, you never get it wrong, like Guantanamo, where we've got 95% of it wrong every time a Guantanamo detainee brings Habeas Corpus suit, 19 out of 20 times the judge finds them not enemy combatants, but the Bush people thought they were omniscient, we don't need warrants here, we don't need judges to second-guess and bet our examination of who we think are Al-Qaeda targets, and we still don't know today, because of Congress's defeat in this, how many Americans were spied on, and every time lawsuits have been brought, there have been technical arguments, state secrets arguments that have been used by Obama and Bush to prevent any disclosure of exactly how many people were spied on, what was done with the information, why were the people selected, did they lose credit or jobs because of leaks of the information, all that is still secret, because Congress refuses to investigate, and the state secret privileges that are invoked by Obama keep it secret and out of the court system as well.
But we know that at least five years, there are probably tens of thousands, if not more, illegal interceptions of phone conversations of Americans on American soil, and those are all crimes, and here we again, we don't even know, Obama isn't even speaking about prosecuting those, at least he talks about waterboarding being a crime, he just kind of protects the illegal surveillance by not even mentioning it whatsoever as being within the realm of criminality, which is truly stunning, since the whole reason why the Foreign Intelligence Surveillance Act was passed in 1978 was precisely because of these violations of these sacred, cherished rights of privacy, so important to keep our political system open and free and people uninhibited in their eagerness and willingness to criticize and talk about politics.
Well you know it's funny, Barack Obama sounded almost like you when he gave his speech, his dueling speech against Dick Cheney at the National Archives, right there in front of the actual Constitution itself, he talked about how wrong it was to come up with these ad hoc, make-believe law policies, naming people enemy combatants, and coming up with these kind of off-the-cuff trial systems for them and that kind of thing, and then he announced he was going to do that exact same thing, only he was going to go to Congress and have them, I guess the Military Commissions Act doesn't give him enough authority, he wants a new law to empower him to arrest even you, Bruce Fine, and hold you without cause, without having committed a crime?
Well I don't even think, I think he was just going to Congress to change a few of the Military Commissions Act procedures with regard to the enemy combatants, detention without accusation or trial, he's flirting with just an executive order without even going to Congress, so we're back to the Bush-Cheney days, and I say, Scott, the reason why this conversation is important because it underscores for the American people in your audience, this is not a Bush-Cheney problem.
Obama is probably the most well-educated president that we'll get in the next hundred years, Harvard Law Review, Chicago Law Professor, he knows this stuff, he still succumbs to the national security state, it's a cultural pathology, everything's got to be subordinated to claims of fright and fear that there'll be another kind of danger out there, and therefore we give up all of our liberties because we need to try to reduce the risk of another 9-11 to zero.
Even though 9-11 is less risky, it's less of a danger than being murdered in the United States.
You know, we've got 17,000 to 20,000 murders every year.
We don't suspend habeas corpus and say we have to detain would-be murderers without accusation or charge because maybe we don't know the next Timothy McVeigh or the next Unabomber or something like that.
No, we recognize that freedom requires some level of risk, not foolish risk, but you've got to accept some risk.
If you want risk zero, then everybody would be locked up because we all have the capability of evil, but we understand if we did that, there's no reason why we'd have a country, no reason why we'd have freedom if we're all going to be in prison.
So you have to have a measured amount of risk, that freedom that is essential, I call the oxygen of any democracy that's not foolish, that says, yeah, we've got to accept the idea that liberty is the rule and the government has to come forth with a good reason to justify thinking that you're a danger before they can deprive you of that indispensable, amenable right to life, liberty, and the pursuit of happiness.
Well now, the reason the Constitution is so much a dead letter these days is because of the empire.
As you mentioned at the beginning, I think, this is all related to the fact that when America rules the world, the presidency dominates the entire government, foreign policy dominates over domestic policy, and the Bill of Rights doesn't even mean a thing.
I mean, you and I could, we could read from the first letter of the First Amendment to the period at the end of the 10th in, you know, 15 seconds or something, and easily understand it, the whole society can understand the entire Bill of Rights, and we can see how it does not really apply anymore, from, you know, Bill Clinton's anti-terrorism act of 96 all the way through, and hell, long before that.
Well, I think that's largely right.
You know, it's Cicero who said, in times of war, the law is silent.
And that's basically, we've become a country that's permanently at war.
And one of the things that's most staggering to me, Scott, was that after 9-11, the country drifted into permanent war, where all the world is a battlefield.
Unprecedented in the history of the United States, with no discussion whatsoever.
We said, okay, international terrorism is a war.
A tactic is a war, instead of a country.
Well, you know, a tactic you cannot expunge, you know, you can't defeat, you know, and end the tactic.
It's always there, so that the definition of war now is perpetual.
There'll never be a time when the risk of international terrorism will be zero.
It can get low, but it'll never be zero.
And you'll notice, Scott, since 9-11, no one has even flirted with a threshold of terrorism where a President or the Congress would say, the war is over.
So the first thing we've got to remember, this is the first time in the history we are in perpetual war.
We've read about 100 years' war, 200 years' war.
The United States now is in perpetual warfare, a condition James Madison said was irreconcilable with freedom.
The second thing is, not only is it perpetual, it is global.
It is because Osama can kill us anywhere, the President, with the acquiescence of Congress and the American people, said, the globe is the battlefield.
So I can use drones, I can suspend habeas corpus, I can use military war, military law, military tactics, anywhere in the world.
I can shoot drones in Pakistan, in Yemen, in the United States, anywhere I think I'm getting al-Qaeda, I can use military force, even in the United States of America.
A truly staggering proposition.
And that's why this administration, even Obama, has said, yes, in all the world's battlefields, you can say that people are enemy combatants, even when they're not on, committing no hostilities.
You know, the so-called, even just training in a terrorist training camp suddenly becomes a capital offense, material assistance to a terrorist organization that then deprives you of your customary rights, you know, the life, liberty, and due process of law.
And these propositions, I say, are the earmarks of empire.
I mean, every square inch of the battlefield, you and me, Scott, in the President's eyes, are standing on a battlefield now.
And if he suspects we have al-Qaeda, he can shoot a missile.
And if we're collateral damage, that's too bad for us.
Now, it's true that Presidents have not utilized all of their power in the United States, but you can see what's happening in places like Pakistan.
See what could happen there.
They send drones, wedding parties, you know.
How many died?
Well, only 10 civilians died of the disputes, whether there was 100 or 80.
But these people have nothing, you know, that they've done that's caused any American harm, and they just perish, you know, by a drone.
And how do we, we don't even know.
The American people don't know.
Congress doesn't know.
How does the President decide who that drone targets to get killed?
And how do we know the information is accurate?
Is it as accurate as those that led to the detentions of all those at Guantanamo, who really were guilty of nothing, like the Uyghurs?
And we are then basically running the equivalent of a technological assassination squad, without any oversight whatsoever.
We still don't know now.
Is somebody being targeted with an American drone, who's innocent as white, and is there because we paid somebody $5,000, $10,000 to give us, you know, informant information that there's Al Qaeda there, or there's Taliban there?
These are the things that eat at the heart of democracy, because if there's anything it means, it means that people need to know what their government is doing to form their political judgments.
We the people are sovereign.
Those are the first three words of the Constitution.
We the people.
You can't be sovereign if you don't even know what your government is doing.
And the drones are a perfect example of that phenomenon.
You know, matters of life and death, and the United States people don't even know how the decisions are being made, whether they want to vote in favor or against or change the law or whatever.
All right, everybody, that's Bruce Fine.
He's the former Associate Deputy Attorney General in the Reagan administration, and he's now part of a group called the Velvet Revolution, pushing to have all of Bush's tortured lawyers disbarred and perhaps prosecuted.
But we're all out of time.
We never got a chance to talk about that part.
But a very interesting interview.
I really appreciate your time on the show today.
Thank you, Scott.
Be good.