For antiwar.com and Chaos Radio 95.9 FM in Austin, Texas, I'm Scott Horton, and this is Anti-War Radio.
Our next guest is Glenn Greenwald.
He's formerly a constitutional law and civil rights litigator.
Now writes his blog, unclaimedterritoryatsalon.com.
And everybody knows that the president has unlimited powers in the area of foreign policy, right?
Well, my second guest today, Glenn Greenwald, says that no, they just think that.
That's not actually true at all.
Is that right, Glenn?
That is true.
That is correct.
There are people who believe that we have a dictator in the area of national security, and it's also true that that is incorrect.
And now, I should also tell the audience here that you're the author of How Would a Patriot Act Defending American Values from a President Run Amok?
And there's a new one coming out, I believe, in June, right?
A Tragic Legacy.
How A. Good versus Evil Morality Destroyed the Bush Presidency.
And that really is the topic here today.
And I have to tell you, when I first learned the Constitution in regular government class at Community College here in Austin, it's pretty apparent that Article II is pretty short and sweet, and it doesn't say really anything about the president being all-powerful in any respect, does it?
No, it doesn't.
And in fact, there is, of course, before the Constitution was enacted, a very vigorous debate about whether it ought to be.
And there was a substantial portion of the population that was opposed to the Constitution and were speaking out against its enactment.
And the primary argument, or certainly one of the primary arguments they were making, was they were concerned that by having this office with a singular executive called the president, that that person would essentially be a repeat of the British king, what they had just fought a very bloody and difficult war in order to escape from.
And so so much of the Constitution and the arguments made by the advocates of the Constitution were devoted towards limiting that office and its powers to ensure that in the area of national security, it was nothing more than the commander in chief, meaning the top general, during the times when Congress authorizes there to be a military at all and authorizes the country to use the military.
Right.
In fact, that is the phrase, right?
He shall be commander in chief of the Army and Navy of the United States when called into the actual service of the United States by the Congress.
Precisely.
You know, I think one of the historical facts that was most important in our country's founding but has been forgotten is that we were not even supposed to be a country that had a standing peacetime army.
That was one of the principal concerns of the founders, was that if we had a permanent army that existed both in war and in peace, that would empower the president to a dangerous extent.
And so the founders required that Congress, when they fund the military, they're not permitted to fund it for more than two years.
And if they want to do that for more than two years, they have to keep justifying why we're doing that.
And so we weren't intended to have a permanent standing military.
We do.
But we certainly weren't intended to have one single individual in control of that military with no limits whatsoever.
And now I have to tell you, I'm an Articles of Confederation kind of guy, but the Constitution, in so much as it creates these people's offices, it ought to bind their power.
I mean, that's the point, right?
Thomas Jefferson said, let us hear no more about faith in men to govern, but let them be bound by the chains of the Constitution.
Right.
I mean, it's exactly, you know, the Constitution was written as a very limited document.
It was, they already had governments in the forms of the states.
And so all the Constitution was meant to do was to enumerate very explicitly what the powers of each branch of government was.
And those powers were not to exist beyond those enumerated powers.
And if you look at Article 2, and it's very short, Article 2, which defines the powers of the executive, is very short.
It says almost nothing other than executing the laws, meaning administering the laws that are passed by the people to their Congress, and serving as commander in chief, as you say, when the army is marshaled.
And that's it.
The president has no powers beyond what the Constitution expressly assigns to him.
Right.
And he does have the power to appoint ambassadors and negotiate treaties, but the ambassadors don't get to take their positions and the treaties don't get to take effect unless they have a supermajority of the U.S. Senate to confirm or ratify.
Right.
I mean, one of the, you know, the principle defining values of our republic is that there is no such thing as unchecked power.
That does not exist.
I mean, that was the first priority of the framers of the Constitution, was to ensure that there was no such thing.
So, Congress can pass a law, but the president can veto it, and the court can declare it unconstitutional.
The president, as you say, can appoint ambassadors or sign treaties, but it's subject to a supermajority approval by the Congress in the case of treaties, and he can be impeached.
What many of the supporters of the president, the current president, believe is that in broadly defined areas of national security, that the president is the only one with powers, and no one can check or limit those powers.
And you can't get a more un-American belief than that.
There is no principle of our government more anathema to what our country is than that belief.
Right.
Now, last June on Fox News, Bill Kristol, the editor of the Weekly Standard, called for Bush to be elevated to, quote, supreme leader.
And now on your blog, I see you quoting Michael Goldfarb from that magazine.
He's written not that the current extraordinary circumstances are so extraordinary that they require that Bush be given all this power, but that this is what the founders always meant, was to create a dictatorship.
Right.
You know, one of the things that caught my attention about that piece that he wrote was, you know, he was on a conference call with George Mitchell, and I guess someone asked George Mitchell whether the Constitution allows the Congress to force the president to withdraw troops from Iraq.
And Mitchell, of course, said, of course they have that power.
That's what the Constitution assigns to them.
And Goldfarb said that's absurd because the president has near dictatorial powers in the area of national security under the Constitution, as you say, that he was arguing that the Constitution already assigns the president that.
What I thought was striking about that was not only is that not true for the reasons that we just discussed, but even the phrase that he used, quote, near dictatorial power, it just struck me that to hear any American describe what our government is and what it should be as being dictatorial.
I mean, I would think that even if we have disputes over, you know, what branch of government has what power, that we would all just instinctively have a revulsion to describing our government as having dictatorial power, and yet there was the weekly standard celebrating, in essence, a dictatorship.
And that's what I found so striking was not just the substance of the claim, but the rhetoric used.
Yeah.
And in fact, I was going to say this for later, but we might as well talk about this now.
This is something that I found in your writings over and over again, your belief that the current group around the Bush administration basically are just at their core hostile to the very basic principles of American government.
They really are.
Exactly.
I mean, one, you know, as we discussed, I mean, one of the principles of the Constitution was to limit the powers of the federal government, not only against as compared to the states, although that was a bit concerned, but also as against as protection of American citizens.
It's a limiting document.
It says these are the only powers you have, and you cannot transgress these limits, and these are prohibitions.
It limits the power of the government.
We have a group of people, a large group, and it's shrinking, but it's still powerful, that believe that they have this moralistic mission, or that if it's not moralistic, it's strategic in their eyes to do things like change the Middle East or attack a whole series of governments and change their power.
They change their leaders, and that nothing can get in the way of that agenda, that that agenda is supreme to everything.
And so they see limitations on our government, including constitutional limits, as being something that is undesirable, and expanding government power becomes the greatest goal.
And since expanding government power is not what our country is about and never has been about, their agenda has nothing to do with our constitutional framework.
It has things to do with many other things that really require them to abandon and oppose that framework.
Well, many of these neoconservatives are, in fact, former Marxists, right?
They're revolutionaries who, I guess, kind of became defense contractor lobbyists or something like that, but there's really nothing conservative about their philosophy and never has been.
No, zero.
And in a way, it's true they're formerly Marxist because they don't expressly advocate Marxism any longer, but they're not really formally Marxist.
They're actually still, in their own way, currently Marxist because their idea of the world is that they have this ultimate objective truth about how countries ought to be run, and can use the power of government to impose that and import it to a whole slew of other countries.
I mean, that really is the core of Marxism, and it's what these neoconservatives still continue to believe as well, and government power is the central tool that they use in order to achieve that agenda.
Well, I read something, oh, a couple of years ago now by a great libertarian writer and thinker named Joseph Stromberg at LewRockwell.com, and it was called In Search of the Elusive War Power.
And, you know, clearly Stromberg was coming from your point of view and my point of view.
He doesn't want to be tyrannized and he doesn't want to give these guys any sort of carte blanche.
But what he did was he went back and studied the law and studied the history and said, you know, my friends, I'm afraid that, you know, perhaps these neocons are right.
That once you're in a state of war, that the basic premise is that the state must survive first, and that ultimately if the state wants to destroy every bit of private property and take every life in the country in order to protect itself first, that's their mandate in a time of war.
Right.
Well, you know, let me say this.
There's no question that the role of the president becomes more powerful when there's a state of war, and that's true for a lot of different reasons.
And the Supreme Court has said that repeatedly in different contexts over the last 200 years.
That is not a new or fictitious principle.
But it's for exactly that reason that, and the founders knew that would be the case, and it's for exactly that reason that the Constitution says we can only be in a state of war when Congress declares it.
And war is such an extraordinary state to be in for our political system that we can only be in that state of war once the people of the United States agree that we should be in war by declaring war through their Congress.
We've only declared war five times in our country's history, and most of the deployments of military force, the use of military force has been without any congressional declaration and without any authorization from the Congress.
And so many of that use of military force really has been a departure from what the Constitution requires, and the reason that's so dangerous is precisely because the power of the president does increase during wartime.
Well, even in the first Washington administration, he rounded up the army and invaded Pennsylvania, right?
Right, and you know, I mean, the founders knew and said themselves that what they were doing was setting forth principles in their Constitution as to how leaders ought to behave, and being human, they knew that they would deviate from this principle in many ways, and they did.
And the fact that they did doesn't mean that leaders now can or that we ought to tolerate that.
We have a constitutional framework that ought to be enforced.
Right, but instead what we get is everybody wants to be Abraham Lincoln.
Everybody wants to say, well, if Lincoln did it, I can do it too.
Which basically means they can do anything.
Right, I mean, you know, it's interesting about those Lincoln comparisons and other things.
I mean, you know, obviously during the Civil War, that was by far the greatest existential threat, perhaps the only existential threat, you know, to this country after the Revolutionary War.
And, you know, there were 50,000 Americans being killed on weekends, a huge percentage of the population at that time.
And certainly Lincoln did transgress the powers of his office at various points, and historians recognize that and condemn him for it.
But the crisis that that country faced at that time is not even remotely comparable to anything that we face now.
And the fact that Lincoln did it hardly means that it should be done, but the circumstances under which he did it are nothing like, not even remotely, anything that we face now.
Yeah.
Now, so what difference is it that what we have in our current situation is the House and the Senate saying, well, Mr. President, you decide.
We pass our authority off to you rather than declaring war.
If I remember right, when Ron Paul issued a declaration of war from the House Foreign Affairs Committee in October of 2002, of course, he was opposed to it, but was calling out his fellow Republicans to take responsibility for their own actions.
And if they really want a war with Iraq, they ought to go ahead and declare it.
And what Henry Hyde told him in rebuke was that that was anachronistic, and partly for a reason I'm almost sympathetic with, Hyde said, listen, if we declared war, then all kinds of statutes would kick into effect that you don't want, my friend.
So maybe really we're better off with Congress advocating their authority and only getting sort of this, you know, half-assed state of war rather than a real one.
You know, maybe.
And I see that argument.
On the other hand, you know, what we end up then getting, though, is a president who can basically use military force and invade other countries without any of the cost.
You know, I mean, war is supposed to entail huge, huge costs.
It's supposed to be something that a population of a country desperately wants to avoid and therefore accepts only in the most extreme circumstances when it really is genuinely necessary and unavoidable to protect the security of the country.
It's not supposed to be something that just every few years we decide to do because it seems like an okay policy option.
And by having this middle ground where basically Americans allow their government to send our army off to, you know, parts of the world that we're not that interested in and invade other countries without any of the cost to us that we ought to have when we authorize a war, what that does is it really does create a climate where war becomes something that's almost inevitable way more often than it ought to occur.
And in part it's because Congress passes the buck for the president.
The people don't really end up involved in the debate or caring if there's a war.
And we end up with exactly the situation, not just the founders, but subsequent presidents like Eisenhower warned about where we basically become a military state perpetually at war.
And that's what, more or less, we've been over the past several decades.
Right.
So, really, if they had had no other option but to declare war or not, they probably just wouldn't have declared it at all rather than choosing to go ahead and enact all those statutes into effect.
Yeah, you know, one wonders.
I mean, it would have at least been a more deliberative process.
And, you know, it isn't just in Iraq but also in Afghanistan.
And, you know, the U.S. military is operating throughout the world.
We're all over, you know, the western part of Africa and Somalia.
And the Sudan and all kinds of places where our special forces and other parts of our military are engaged in real hostility.
You know, in every sense, it's tantamount to war, and yet there's no deliberation about it, there's no oversight, and there's no declaration.
And I think that, you know, having that kind of flawlessness where the president basically really is in command of a standing army that he deploys at will is exactly the situation that the war declaration requirement was intended to avoid.
And you highlighted on your blog, Unclaimed Territory, the fact that actually it was the National Review that pointed this out, which might as well be the weekly standard to me, that Rudolph Giuliani claims not only that he has, once he's the president, he thinks, the power to kidnap Americans, but even has the power to go ahead and fawn the war by himself if Congress wants to force an end to the war.
Yeah, exactly.
And, you know, I mean, one of the interesting things, I mean, I lived in New York for the entire time when Rudy Giuliani was mayor, and he does not share George Bush's religiosity.
I mean, he's not any evangelical Christian, and faith in God is not the centerpiece of his worldview.
What he does share is the belief, and he was a former prosecutor, and it's commented to a lot of prosecutors, is the belief that he is on the side of good, that his job is to battle the enemy or battle those who are evil, and that anything becomes justifiable in order to advance that battle.
And so the one thing Giuliani will not recognize are limitations on his own power, because in his mind, he's using his power for good, and limitations on that power are, in essence, a way of helping the enemy.
And so, as you say, he made two extraordinary statements.
He said he thought he had the power to arrest American citizens with no due process of any kind, a power that he said he hoped to use only infrequently, but that he did possess.
And he said, even if Congress cut off funding, that the President had an inherent constitutional duty to protect the troops, and there could fund the war, even if Congress, even if the American people through the Congress cut funding off for that war.
And that's a view of the presidency that entails no limits whatsoever, and I think Giuliani instinctively believes in that view of the presidency.
Now, the thing is this, I mean, for anyone who reads the Constitution, this is all just completely bogus.
I mean, Article I begins, all legislative powers reside in the Congress.
And, you know, the Tenth Amendment, for example, says, if we don't list a power granted to you, you don't have it.
And yet, well, as Butler Shafer paraphrased or quoted Lord Macaulay on this show, our Constitution is all sale and no anchor, and it seems like these people can engage in pretty much whatever abuses they want, and there's really no teeth in the Constitution to prevent them from doing so.
Right.
I mean, you know, again, we do have checks that are supposed to be effective, and you do see some of that.
For example, Congress has itself exceeded its limitations in the Constitution.
Congress can't legislate whatever it wants.
It only can legislate in certain areas that the Constitution specifies, and everything else is left to the people of the states.
And yet, Congress has done things like use the Commerce Clause and other parts of the Constitution to basically take over every single aspect when it legislates.
But then the check on that is that the Supreme Court has now been gradually ruling that Congress is exceeding its authority and doesn't have the power to legislate in certain areas.
You see that too with the Supreme Court placing some limits on what the President can do in terms of military tribunals at Guantanamo Bay and his detention of U.S. citizens.
So you do see our system of checks and balances working, and that really is supposed to be the solution that the founders designed.
The problem comes when the whole country gets consumed in this kind of war hysteria, and all branches of the government are controlled by the same political faction.
And we've had both of those circumstances for the last six years, and that's been the real danger.
That's been what has distinguished, I think, the Bush presidency, even from prior excesses, is that those checks, in a lot of ways, have really failed.
Now, when we talk about this philosophy of the presidency, they call it the unitary executive theory.
And I'm led to understand that this theory is championed by something called the Federalist Society, which rings of Alexander Hamilton.
Can you fill me in a bit on what their role is in this?
Sure.
I mean, the Federalist Society goes back to the 70s, and most of the lawyers in the Reagan Justice Department who thought that in the aftermath of Watergate that the President had been far too limited and handicapped in what his powers were, began creating these theories that, in reality, the President has essentially unlimited power in terms of how they execute laws, in terms of how they protect the country in broad areas of national security and national defense.
And that, in essence, the Congress has no role of oversight or anything else when it comes to these areas of the presidency.
And it's a theory that really Dick Cheney and Don Rumsfeld and what was back in the mid-70s really a fringe were promoting.
And the Bush administration basically filled all of the Justice Department ranks and even the ranks of our federal courts with people who ascribe to these very extremist theories promulgated by the Federalist Society that seek to place virtually unlimited power in the President.
And those are the theories which more or less have been predominant in our country throughout the Bush presidency.
And now, when you talk about stacking the federal courts with men who believe in this, that includes Alito and Roberts on the Supreme Court, doesn't it?
Definitely.
I mean, you know, it's interesting when the Supreme Court battles of the 1980s and even the 1990s were over issues primarily like abortion and gay rights and other social issues, and people mistook those appointments as being about those.
And, you know, I think George Bush cares comparatively little about social issues, including abortion and gay rights.
He's far more driven by this vision of the presidency as an unlimited, unchecked office.
And both Roberts and Alito were most distinguished, not for their reliability in overturning Roe v.
Wade or other social issues, but they almost uniformly come down in favor of the government whenever citizens have sued and challenged what the government is doing on constitutional grounds.
And not just the government generally, but the executive in particular.
They are very prosecutor-friendly and specifically real worshippers of executive power, and that was the real reason they were tripping on.
Well, thanks to Amy Goodman, I remember that it was literally the day after John Roberts met with George W. Bush for his job interview as Associate Justice.
He ended up being Chief Justice.
It was the next day that, as part of a three-judge federal appeals court panel, he ruled that, yes, it's perfectly all right for the president to make up the concept of enemy combatant and apply it to people.
No, you're exactly right.
That was the case of Hamdan, which the Supreme Court last summer ended up reversing.
They found that the president did not have that authority and had exceeded his authority under the law.
In the lower court, the D.C.
Circuit ruled in favor of the president, and exactly as you say, John Roberts was one of the judges who ruled in favor of the president exactly at the time that he was being considered for the Supreme Court position.
And that was the ruling that the Supreme Court overturned.
Yeah, and that was the ruling where this guy Roberts made Scalia look like Thomas Jefferson, right?
Well, that's why I say, you know, Roberts appeared before Congress and seemed so friendly and reasonable, and people had a hard time demonizing him because he seemed to be, you know, of a reasonable disposition.
But when it came down to looking at his opinions in the areas of executive power, the issues that really matter most to our country right now, it would be hard to find someone more extremist than he, including Alito.
I'm talking with Glenn Greenwald.
This is Antiwar Radio.
He writes the blog Unclaimed Territory, and he has a new book coming out in just a couple of months, A Tragic Legacy, How a Good vs.
Evil Morality Destroyed the Bush Presidency.
And, Glenn, is it all right if I keep you on here a few more minutes?
Sure, no problem.
Okay, now I want to ask you about the left and right and the new realignment.
I'm a pretty strict libertarian, and yet I sure do appreciate a lot of the liberal left and a lot of the conservative right, or I guess I should say the paleoconservative right.
And I think we have a lot of common cause in opposition to Leviathan here at home and foreign empire, and basically I just want to get a feel for what you think of that.
I've noticed in reading through your blog, you sure sound like an old republic non-interventionist kind of guy for someone who would seem to be on the liberal internationalist side of the spectrum, no?
Well, it's interesting.
I began blogging and political writing only about a year and a half ago and was prompted by a lot of the excesses that we've been discussing in the Bush administration and areas of executive power.
And what was so interesting to me was I wrote almost exclusively about things like the Warren-less eavesdropping program and the Bush administration's use of torture and rendition and just their overall belief that the president has unlimited powers.
And I wrote almost nothing about the sort of standard issues that generally used to define whether you were considered a liberal or a conservative.
I don't think I've ever written about things like Cox policy or welfare programs or social spending or abortion or the death penalty or gay rights or any of those issues.
I've never written anything about those.
And despite all that, everywhere I looked, my writings were being referred to as leftist or liberal, even though the arguments that I was making were confined almost exclusively to arguments that the president was exceeding his authority by essentially breaking the law and assigning to himself imperial powers.
And I found myself working frequently with traditional liberals who do have liberal beliefs in all of those other areas.
Those were my natural allies.
Or I've written articles in the American conservative with sort of paleoconservatives who have a more traditional view of our country and oppose this neoconservative extremism.
And a lot of that really did make me realize that just the radicalism of this presidency and the movement that supports it is creating a political realignment where now what really determines whether you're considered left or right or conservative or liberal is not so much your views on any of those more standard political conflicts that have defined our country for the last couple decades.
But instead of whether or not you support or oppose this agenda of endless militarism in the Middle East and the accompanying abridgments of liberty at home, those are really the issues that shape where you fall on the political spectrum.
So you really aren't left or right.
You're the walking realignment right now, aren't you?
I mean, I think that the issue that I'm focusing on are the issues that have caused the realignment.
And I'm definitely a vigorous opponent of the Bush administration on virtually every level.
But I don't think the Bush administration is remotely conservative as that term has been understood in some, you know, Goldwater limited conservative sense.
And so I don't think being a critic of the Bush administration makes you a liberal.
Right.
Yeah.
I guess I assume too much just from judging by your fan base.
I mean, as I said, you seem like a pretty old republic kind of guy.
You argue not for liberal internationalism, but for non-interventionism.
And, you know, in listening to you talk about the 10th Amendment and the forms of the Constitution, you don't sound like a new dealer type to me.
You know, I mean, basically, the way that I would describe it is, you know, I was a constitutional lawyer for 10 years and defended a lot of the specific Bill of Rights, including the First Amendment.
I mean, I believe in a system of government that was created by our founders.
I think they were brilliant men who created political principles that are as good as if not better than anything else created.
And so I'm opposed to deviations from that system of government.
And we know the fact that we have a Republican president who's leading a political movement that doesn't believe in those means that I'm an opponent of that political faction, but I don't think that makes you, you know, some sort of liberal.
Right.
And frankly, you know, for the issues that, as you defined them earlier, the ones that have typically defined the splits in these movements, education and abortion and those kinds of things, like, ultimately, for those of us who realize what trouble we're in, in terms of just the basic forms of our government, all those issues can wait.
We have a Bill of Rights that we have to reinstate here before we just can't.
Exactly.
You know, I mean, I've had people come in right before, well, you know, if you're really not a liberal, which I don't claim, but I mean, people say things like we're not a liberal, why don't you sometimes write in opposition to liberals or, you know, and basically, you know, our country has been all but dominated by the Bush faction for the last six years, if not longer.
They control the Congress almost completely.
They control the presidency and mostly the courts.
The left in this country has, you know, been more or less marginalized.
And as you say, these issues of endless warfare and abridgments of liberty are immediate crisis issues.
And the other debates really are secondary, if not further.
You know, nobody's seeking desperately to expand the welfare state or to, you know, raise taxes or to any of those other issues have really been put on the back burner because the agenda of the Bush administration and neoconservatives really is, are the issues that can change our national character fundamentally.
Right.
Absolutely.
And, you know, I noticed with pleasure on your blog, too, that you defined the neoconservatives as centrists rather than far right, as many people do.
And I agree with that, that the neoconservatives really are the center of being, you know, former leftists who moved to the right there.
They're definitely extremists, not moderates.
But that's always been my contention that the real extremists lie in the center of the spectrum.
Absolutely.
And, you know, as discredited as they become and as kind of exposed as they become in some circles, you know, the reality is they still are the most powerful group.
I mean, they exert the greatest influence on the president, who happens to be the most powerful political official in the world.
And even in the media, their views are so wildly overrepresented.
If, you know, you look at Bill Kristol and Charles Krauthammer and who get promoted to, you know, feature columns in Time magazine, the view that America should be this militaristic power is really be common in our media, the mainstream view.
And so it is at the center and it is a powerful group.
And even though they are extremists and that explains a lot about the problems our country faces.
Absolutely.
Well, what a treat.
This has been Glenn Greenwald.
He writes the Unclaimed Territory blog, now to be found at Salon.com, a former constitutional law and civil rights litigator, author of How Would a Patriot Act and the forthcoming A Tragic Legacy.
How a good versus evil morality destroyed the Bush presidency.
Thanks so much for your time today, Glenn.
Really appreciate it.
I really enjoyed it, Scott.
Thank you.
